People ex rel. Weber v. Division of Parole

• Decision Date: 08 March 1961
• Parties: PEOPLE of the State of New York ex rel. Robert WEBER, Relator, v. DIVISION OF PAROLE of the State of New York, Respondent.
• Court: New York Supreme Court

Page 761

212 N.Y.S.2d 761

PEOPLE of the State of New York ex rel. Robert WEBER, Relator, v. DIVISION OF PAROLE of the State of New York, Respondent.

Supreme Court, Westchester County.

March 8, 1961.

Stanley J. Reiben, New York City, for petitioner.

Louis J. Lefkowitz, Atty. Gen., for respondent.

GEORGE M. FANELLI, Justice.

In this Article 78 proceeding petitioner seeks to review and annul a determination of the New York State Board of Parole made at Sing Sing Prison on April 20, 1960, revoking his parole as of December 17, 1955, or, in the alternative, modifying said order revoking said parole to the extent that petitioner's term of incarceration shall end on the original expiration date of his sentence on June 6 or 7, 1960, less a jail credit of 52 days.

The record indicates that on June 6, 1950, petitioner was sentenced in the Court of General Sessions of New York County to serve a term of 5 to 10 years in state's prison upon a conviction of robbery in the second degree. He was received in Sing Sing Prison on June 7, 1950, with a jail credit of 52 days; was paroled from Wallkill State Prison on September 21, 1953, and returned to Sing Sing Prison on March 25, 1960, as a parole violator charged with owing 4 years, 2 months and 28 days delinquent time. After a hearing held by a Parole Court at Sing Sing Prison on April 20, 1960, petitioner was declared delinquent as of December 17, 1955, and required to serve the aforementioned time. Petitioner is presently confined to Green Haven Prison and his maximum term will expire June 23, 1964.

The record further indicates that the basis for the April 26, 1960 decision of the Board of Parole declaring petitioner delinquent as of December 17, 1955 was petitioner's conviction in a Magistrate's Court on said December 17, 1955 of the offense of disorderly conduct (dice) for which he was fined $2. In this proceeding petitioner attacks the aforementioned determination of the Board of Parole upon the principal grounds: (1) that he was not in fact guilty of any delinquency since he was never convicted of the disorderly conduct charge which was the basis for the Board's decision; (2) that the Robert Weber convicted of said disorderly conduct on December 17, 1955 was either a different Robert Weber, or some other person using his name; (3) that the evidence adduced before the Board of Parole was inconclusive; (4) that even if petitioner were the Robert Weber so convicted, the Board's determination requiring him to serve the balance of his maximum term for which he was originally sentenced, was harsh, arbitrary, capricious and shocking to one's sence of fairness and justice; (5) that the Board of Parole did not act diligently in declaring petitioner delinquent after having reasonable cause to believe that he had been violating his parole since 1957 or early part of 1958; and (6) that the Board of Parole should have, in the exercise of reasonable diligence, discovered the 1955 disorderly conduct conviction long before March or April 1960.

After a careful review of the entire record pertaining to this matter, the court is of the opinion that petitioner's contentions must be overruled and the petition dismissed. While it is true that in a proper case wherein questions of law are involved the Supreme Court in an Article 78 proceeding may review the determination of the Board of Parole (Browne v. State Board of Parole, 25 Misc.2d 1050, 207 N.Y.S.2d 488, affirmed 12 A.D.2d 800 211 N.Y.S.2d 1014), yet, where such determination involves (as here) matters of discretion and no positive statutory requirement has been violated, such action on the part of the Board cannot be reviewed by the court (Hines v. State Board of Parole, 293 N.Y. 254, 56 N.E.2d 572). In this proceeding, there has been no showing that the Board violated and positive statutory duty. A Parole Court hearing was conducted by the Board on April 20, 1960, at which hearing petitioner personally appeared and denied that he was the Robert Weber who was convicted of said disorderly conduct charge on December 17, 1955, despite his parole officer's report that petitioner had admitted to him that he was the person so involved. It is quite obvious that the Board was called upon at this hearing to exercise a judicial function to the extent of determining, inter alia, a question of credibility and, from its decision, it undoubtedly did not give credence to petitioner's explanations and denials. Such judicial function (involving discretion and judgment) and fact finding, on the part of the Board as to petitioner's delinquency on December 17, 1955, may not be reviewed by this court even though the impact of the Board's decision may seem arbitrary or harsh (Hogn v. Canavan, 245 App.Div. 391, 283 N.Y.S. 91).

Furthermore, the record indicates that petitioner has heretofore sought in a habeas corpus proceeding to challenge the determination of the Board of Parole declaring him delinquent as of December 17, 1955, and requiring him to serve the balance of the maximum term for which he was originally sentenced. On September 6, 1960,...