Picciano v. Hammock

• Decision Date: 24 March 1983
• Citation: 92 A.D.2d 1043,461 N.Y.S.2d 524
• Parties: In the Matter of Richard PICCIANO, Appellant, v. Edward HAMMOCK, as Chairman of the New York State Board of Parole, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 524

461 N.Y.S.2d 524

92 A.D.2d 1043

In the Matter of Richard PICCIANO, Appellant, v. Edward HAMMOCK, as Chairman of the New York State Board of Parole, et al., Respondents.

Supreme Court, Appellate Division Third Department.

March 24, 1983.

Robert A. Kagan, Plattsburgh, for appellant.

Robert Abrams, Atty. Gen. (Martin A. Hotvet, Asst. Atty. Gen., of counsel), for respondents.

Before MAHONEY, P.J., and SWEENEY, MAIN, CASEY and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered April 12, 1982 in Clinton County, which denied petitioner's application, in a proceeding pursuant to CPLR article 78, seeking to annul a determination revoking petitioner's parole.

The sole issue on this appeal is whether petitioner was afforded a timely final parole revocation hearing. Pursuant to section 259-i (subd. 3, par. [f], cl. [i] ) of the Executive Law, a final parole revocation hearing must be held within 90 days of the probable cause determination, except that the time limit may be extended where the alleged violator requests and receives an adjournment, consents to a postponement or otherwise acts to preclude the prompt conduct of the hearing. This time limit is mandatory and any delay beyond the 90 days is unreasonable per se, unless the exceptions provided for in the statute are applicable (People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, 411 N.Y.S.2d 343 affd. 48 N.Y.2d 1019, 425 N.Y.S.2d 802, 402 N.E.2d 141).

Here, the probable cause determination occurred October 8, 1980, when petitioner waived his right to a preliminary revocation hearing (Executive Law, § 259-i, subd. 3, par. [d]; see, also, Matter of Garland v. New York State Div. of Parole, 86 A.D.2d 848, 447 N.Y.S.2d 446). The final hearing was originally scheduled for December 11, 1980, well within the 90-day period, but was adjourned at petitioner's request. The hearing was rescheduled for January 29, 1981, but was thereafter postponed for administrative reasons chargeable to respondents until it was finally held on March 9, 1981, the 152nd day after the probable cause determination.

On appeal, respondents now contend that once an alleged violator requests an adjournment, the 90-day time limit of section 259-i (subd. 3, par. [f], cl. [i] ) is no longer applicable and all that is required is that the final revocation hearing be held within a reasonable time. As noted above, however, the statute must be strictly construed, since the legislative purpose was to create a time period beyond which any delay is unreasonable per se (People ex rel. Levy v. Dalsheim, supra). "The Legislature obviously intended to avoid what had previously been the practice of making ad hoc determinations as to whether a particular delay was or was not reasonable under the circumstances" (People ex rel. Johnson v. New York State Bd. of Parole, 71 A.D.2d 595, 418 N.Y.S.2d 418). Respondents' contention is contrary to the statutory construction adopted by them herein at the administrative level and at Special Term, whereby they sought to exclude from the total elapsed time those delays for which extensions are authorized by the statute. In our view, this latter construction of the statute is proper (see, e.g., People ex rel. Sloan v. New York State Bd. of Parole, 88 A.D.2d 666, 450 N.Y.S.2d 512; People ex rel. Goodman v. Smith, 73 A.D.2d 800, 423 N.Y.S.2d 724).

Respondents also contend that in petitioner's request for an...