People ex rel. Walsh v. Vincent

• Decision Date: 28 December 1976
• Citation: 360 N.E.2d 919,392 N.Y.S.2d 240,40 N.Y.2d 1049
• Parties: , 360 N.E.2d 919 The PEOPLE of the State of New York ex rel. Michael WALSH, Respondent, v. Leon J. VINCENT, as Superintendent of the Green Haven Correctional Facility, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 240

392 N.Y.S.2d 240

40 N.Y.2d 1049, 360 N.E.2d 919

The PEOPLE of the State of New York ex rel. Michael WALSH, Respondent, v. Leon J. VINCENT, as Superintendent of the Green Haven Correctional Facility, Appellant.

Court of Appeals of New York.

Dec. 28, 1976.

Louis J. Lefkowitz, Atty. Gen. (Carl Saks and Samuel A. Hirshowitz, New York City, of counsel), for appellant.

Norman S. Hatt, New York City, James J. McDonough and Matthew Muraskin, Mineola, for respondent.

PER CURIAM.

Matter of Beattie v. New York State Bd. of Parole, 39 N.Y.2d 445, 384 N.Y.S.2d 397, 348 N.E.2d 873, is all but dispositive of every aspect of this case. The one difference which remains is that relator in this case was, at the applicable times, still lodged in a local correctional facility, while in the Beattie case the petitioner had been physically lodged in a State facility although held as a local prisoner. The difference is immaterial so long as the parolee was in a place subject to the convenience and practical control of the Parole Board. The fact is that relator was brought from one local facility to another in order to give him a preliminary parole hearing. This is demonstrative that the particular local facilities are places 'subject to the convenience and practical control of the Parole Board.'

In the Beattie case, it was said (p. 447, 384 N.Y.S.2d p. 399, 348 N.E.2d p. 874): 'Of course, the parolee, in order to receive a hearing, must be in the custody of a correction facility as an inmate in connection with which the Parole Board has parole jurisdiction (cf. People ex rel. Petite v. Follette, 24 N.Y.2d 60, 64, 298 N.Y.S.2d 950, 246 N.E.2d 722). In this case, there was such custody and it is immaterial that the technical form of the custody was by virtue of temporary detention due to inadequate detention facilities in the City of New York (People ex rel. Allah v. Warden, 47 A.D.2d 485, 487--488, 367 N.Y.S.2d 486 * * *). The fact is that the parolee was in a place subject to the convenience and practical control of the Parole Board.'

In the absence of a showing by the correctional or parole authorities that a particular local facility in the State is, for strong practical reasons, beyond its convenience and control, a situation difficult to bring to mind, a parolee is entitled to a prompt final parole revocation hearing.

Moreover, it is not without significance that the Appellate Division had before this case given warning that it would insist on prompt parole hearings (see memorandum opn. at App.Div.).

Accordingly, the order of the--Appellate Division should be affirmed, without costs.

JASEN, Judge (dissenting).

I would reverse the order of the Appellate Division. A local correctional facility is not an institution within the parole jurisdiction of the State Board of Parole. Under State statute, the board is not required to hold a final parole revocation hearing until the prisoner has been returned to 'an institution under the jurisdiction of the state department of correction or at such other place as may be designated pursuant to rules and regulations of the board.' (Correction Law, § 212, subd. 7.) Our own cases and those in the Federal courts do not require otherwise.

Moreover, the Appellate Division committed a serious abuse of discretion when it ordered the release of this prisoner as the remedy for the board's alleged failure to hold a prompt final revocation hearing. Petitioner pleaded guilty to a charge of narcotics possession and thereby confessed to a violation of the terms of his parole. Given the conclusive proof of parole violation, the Appellate Division punished the community at large, not the Board of Parole, by directing the release of this petitioner for the failure to hold a hearing that could not have resulted in anything other than revocation of parole. The prisoner, as a result, has been released not only from his confessed parole violation, but from his original sentence as well. This, in my view, does not accord with community safety or with sound justice.

The Board of Parole is charged with the duty of supervising all prisoners released on parole or conditionally released from institutions under the jurisdiction of the State Department of Correction. (Correction Law, § 210.) The Supreme Court has declared that, as a matter of constitutional due process, parolees charged with parole violations must be afforded a preliminary hearing promptly after arrest and an additional hearing before final parole revocation. (Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484.) The Correction Law makes provision for the enforcement of this right. 'Whenever there is reasonable cause to believe that a person who is on parole or conditional release has violated the conditions thereof, the board of parole as soon as practicable shall declare such person to be delinquent. Thereafter, the board shall at the first available opportunity permit the alleged violator to appear personally, but not through counsel or others, before a panel of three members and explain the alleged violation. Such appearance shall be either at an institution under the jurisdiction of the state department of correction or at such other place as may be designated pursuant to the rules and regulations of the board.' (Correction Law, § 212, subd. 7.) Pursuant to board rules, the preliminary hearing is conducted by a member of the board or by a designated employee of the Department of Correction. (7 NYCRR 1925.20(a).) The final hearing, however, must be conducted by three members of the board with one member designated as the hearing officer. (7 NYCRR 1925.20(b).) The board has extended to the parolee the right to be represented by counsel at both hearings. (7 NYCRR 1925.25.) The preliminary hearing is to be held 'as soon as practicable' (7 NYCRR 1925.30(a)), but the final hearing is to be conducted 'as soon as practicable after the releasee's return to a State correctional institution or at such other place as may be designated by the board.' (7 NYCRR 1925.30(b).)

As the Supreme Court has made clear, the final revocation hearing need not be held, as a matter of constitutional law, until the parolee's return to a State penal institution. Indeed, it was the 'substantial time lag' between arrest and detention that prompted the need for a preliminary hearing. In Morrissey v. Brewer (supra), the court stated 'it may be that the parolee is arrested at a place distant from the state institution, to which he may be returned before the final decision is made concerning revocation. Given these factors, due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.' (408 U.S., at p. 485, 92 S.Ct. at p. 2602.)

The event which triggers the holding of the final hearing, under the due process standard as well as under State statute, is the return of the prisoner to a State institution. In Matter of Beattie v. New York State Bd. of Parole, 39 N.Y.2d 445, 384 N.Y.S.2d 397, 348 N.E.2d 873, the prisoner was returned to a State institution although he was not detained for parole violation but for separate criminal charges. The local prison facilities were overcrowded and the State agreed to house local detainees in its institutions. (See Correction Law, § 79.) However, the institution was one over which the Parole Board had parole jurisdiction and it was 'immaterial that the technical form of the custody was by virtue of temporary detention due to inadequate detention facilities in the City of New York * * * The fact is that the parolee was in a place subject to the convenience and practical control of the Parole Board.' (39 N.Y.2d, at p. 447, 384 N.Y.S.2d at p. 399, 348 N.E.2d at p. 874.)

The present case is far different. The prisoner, after being detained on parole violation charges, was housed in a local detention facility. A preliminary hearing was held there due to court order. Nearly four months lapsed between the preliminary hearing and prisoner's plea of guilty to a charge of possession of a controlled substance in the seventh degree. He was sentenced to a three-month period of imprisonment, a term which was satisfied by the period served, pending disposition of the case, in the local facility. Shortly thereafter, the remaining criminal charge against him, petit larceny, was dismissed and prisoner was returned to a State facility. Three months passed between the return to a State facility and the holding of...