People v. Travis

• Decision Date: 09 November 2001
• Docket Number: 01-00858,4
• Parties: PEOPLE OF THE STATE OF NEW YORK EX REL. ALBERT VICTORY,BRION D. TRAVIS, CHAIRMAN, NEW YORK STATE DIVISION OF PAROLE, AND KEVIN WALSH, ONONDAGA COUNTY SHERIFF,KAH 01-00858. (Onondaga Co.) SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

PEOPLE OF THE STATE OF NEW YORK EX REL. ALBERT VICTORY, PETITIONER-APPELLANT,

V

BRION D. TRAVIS, CHAIRMAN, NEW YORK STATE DIVISION OF PAROLE, AND KEVIN WALSH, ONONDAGA COUNTY SHERIFF, RESPONDENTS-RESPONDENTS

KAH 01-00858. (Onondaga Co.)

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT

November 9, 2001

PRESENT: PIGOTT, JR., P. J., WISNER, SCUDDER, BURNS AND GORSKI, JJ.

Judgment unanimously affirmed without costs. Memorandum: Following a preliminary parole revocation hearing, petitioner commenced this habeas corpus proceeding seeking his release from custody on the ground that the probable cause determination rests upon evidence illegally obtained by the police. Supreme Court determined that, even if petitioner's allegations of fact are true, they do not establish that the evidence underlying the probable cause determination was illegally obtained, and thus the court dismissed the petition.

We note at the outset that, contrary to the contention of Brion D. Travis, Chairman, New York State Division of Parole (respondent), the exclusionary rule applies to all stages of the parole revocation process, including a preliminary parole revocation hearing. Nothing in People ex rel. Piccarillo v New York State Bd. of Parole (48 N.Y.2d 76) suggests otherwise.

Nevertheless, we conclude that the petition was properly dismissed. Pursuant to Executive Law § 259-i (5), any action by a Hearing Officer is a judicial function that is not reviewable if done in accordance with law. A Hearing Officer has no authority to rule on suppression issues (see, Matter of Finn's Liq. Shop v State Liq. Auth., 24 N.Y.2d 647, 657, n 2, cert denied 396 U.S. 840; Matter of Tejada v Christian, 71 A.D.2d 527, 529). Thus, in the absence of a prior judicial determination that evidence presented at a preliminary parole revocation hearing has been illegally obtained, a Hearing Officer may consider that evidence on the issue of probable cause. A subsequent judicial determination suppressing that evidence does not undermine the validity of the probable cause determination. Just as in Grand Jury proceedings, where "until nullified the evidence is competent and may supply a necessary element in a prima facie case" (People v Oakley, 28 N.Y.2d 309, 312; see, People v Gordon, 88 N.Y.2d 92, 96), evidence that has not been suppressed may supply the basis for a probable cause determination at a preliminary parole revocation hearing. Thus, a parolee may not bring a...