People ex rel. Warren v. Mancusi

• Decision Date: 08 November 1971
• Citation: 70 Misc.2d 90,332 N.Y.S.2d 442
• Parties: The PEOPLE of the State of New York ex rel. David Miles WARREN, Relator, v. Vincent R. MANCUSI, As Superintendent of Attica Correctional Facility, Respondent.
• Court: New York County Court

Page 442

332 N.Y.S.2d 442

70 Misc.2d 90

The PEOPLE of the State of New York ex rel. David Miles WARREN, Relator, v. Vincent R. MANCUSI, As Superintendent of Attica Correctional Facility, Respondent.

Wyoming County Court.

Nov. 8, 1971.

Return of a Writ of Habeas Corpus issued by this Court upon

the Petition of

Relator dated August 24, 1971, returnable September 3, 1971.

David Miles Warren, pro se, and by Legal Aid Society of Buffalo, Inc., Douglas Cream, Buffalo, Assigned Counsel, for relator.

Louis J. Lefkowitz, Atty. Gen. by Bruce Schmidt, Asst. Atty. Gen., for respondent; Bedros Odian, Asst. Atty. Gen., on brief.

JOHN S. CONABLE, Judge.

MEMORANDUM

This case involves the propriety of a Parole Revocation Hearing. Heretofore on June 10, 1971 in Wyoming County Habeas Corpus File #4319 this Court ordered a new hearing pursuant to People ex rel Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238. The original hearing was held before the Parole Board on January 14, 1971. The original Order was modified to provide for an extension of the time in which it should be held. The new 'hearing' was held on August 19, 1971. It is the Relator's position that this hearing was illegal and did not comply with this Court's prior order. It is the position of the Attorney for the Respondent that rather than a change in custody the Relator seeks a review of a determination of an Administrative Board. From this he argues that the County Court of Wyoming County has no jurisdiction. See Section 7804(b) of the CPLR.

The difficulty with this position is that People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238, Supra, itself was a Habeas Corpus case. See also People ex rel. Combs v. La Vallee, 29 A.D.2d 128, 238 N.Y.S.2d 600. Upon the authority of those cases this Court holds that Habeas Corpus is an appropriate proceeding to determine if a Parole Revocation hearing was so conducted that the Relator belongs in the cutody of the State Department of Correctional Services.

Exhibit '1' in evidence is the transcript of the hearing before the Board of Parole held on August 19, 1971. The Parole Board, through Commissioner Lewis, informed the Relator of four allegations of Parole violation. The Relator denied each allegation.

The Parole Board then took the position that the burden was on the Relator to prove his innocence of the charges. The Relator declined to answer questions and there was a perfect stalemate. Both sides apparently had a Parole Violation report but this was never put in evidence.

It seems clear to this Court that the Parole Board has the burden of going forward and presenting proof where the parole violations are denied. See Arciniega v. Freeman, decided October 26, 1971, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126.

There, in considering the revocation of Parole under § 4207 of 18 U.S.Code Annotated, the Court required 'satisfactory evidence' of a parole violation. In the instant case there was no evidence put in at all! The Parole Violation reports are not verified. It would seem to this Court that as a bare minimum the Parole Officer who is responsible for returning a man to prison, should be sworn and subjected to cross examination. He should be produced by the Parole Board for this purpose. See People ex rel. Silbert v. Cohen, 29 N.Y.2d 12, 323 N.Y..S2d 422, 271 N.E.2d 908.

It has long been the law in this...