Richardson v. New York State Bd. of Parole

• Citation: 341 N.Y.S.2d 825,41 A.D.2d 179
• Parties: In the Matter of the Application of Melvin RICHARDSON, Petitioner-Respondent, For a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. NEW YORK STATE BOARD OF PAROLE, Respondent-Appellant.
• Decision Date: 22 March 1973
• Court: New York Supreme Court — Appellate Division

Page 825

341 N.Y.S.2d 825

41 A.D.2d 179

In the Matter of the Application of Melvin RICHARDSON,

Petitioner-Respondent, For a judgment pursuant to

Article 78 of the Civil Practice Law and Rules, v. NEW YORK STATE BOARD OF PAROLE, Respondent-Appellant.

Supreme Court, Appellate Division, First Department.

March 22, 1973.

Hillel Hoffman, New York City, of counsel (Samuel A. Hirshowitz and David Berman, New York City, with him on the brief; Louis J. Lefkowitz, Atty. Gen.), for respondent-appellant.

William E. Hellerstein, and Joel Berger, New York City, for petitioner-respondent.

Before STEVENS, P.J., and McGIVERN, NUNEZ, MURPHY and STEUER, JJ.

STEUER, Justice.

Petitioner was convicted of grand larceny in the second degree on February 23, 1971, and sentenced to an indeterminate sentence not to exceed three years. After he had served 11 months the respondent Board of Parole released petitioner from Great Meadow Correctional Facility to its own custody. Some three months later he was arrested by his parole officer for violating the terms of his parole. Shortly thereafter he was sent to State Prison at Ossining.

On May 19, 1972, petitioner commenced this article 78 proceeding, claiming that his constitutional rights had been violated. While the proceeding was pending the respondent conducted a revocation hearing at which petitioner was represented by counsel. Following the hearing petitioner's parole was revoked. Special Term, 71 Misc.2d 36, 335 N.Y.S.2d 764, vacated the revocation and directed respondent to hold a preliminary hearing, deeming this to be mandated by the holding of the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. In addition, Special Term made certain directions in regard to the preliminary hearing.

In Morrissey two parolees had their paroles in the state of Iowa revoked. They brought a proceeding in the Federal courts, challenging the action of the state by way of writ of habeas corpus. The District Court and the Federal Court of Appeals denied the writ. The Supreme Court first noted that while the state contended that a revocation hearing had been held and that the petitioners had admitted the acts claimed to constitute the violation of parole conditions, those facts did not appear in the record and were not advanced in the courts below. The Supreme Court therefore determined the matter in the factual aspect which the record presented, as if there had been no hearing at all. The opinion, after determining that some hearing was required, went on to prescribe the minimum standards which would accord with due process. The basic requirement is a revocation hearing. As we are not concerned on this appeal with the revocation hearing itself, it is unnecessary to discuss the requirements of such a hearing at this time. The court took note of the fact there is customarily a time lag between the date of arrest and the revocation hearing, and that a period of two months would not be an unreasonable interval. It went on to provide a safeguard against incarceration during this interval without there being some determination that there was reasonable cause for the arrest. Reasonable cause would be grounds for a reasonable belief that there were parole violations of a nature that would warrant revocation. Here again, at this point, it is unnecessary to consider the standards that would amount to due process in such a hearing.

The significant factor on this appeal is that the preliminary hearing has two purposes--first to determine whether further proceedings are warranted, and second to justify incarceration until a final determination on a formal revocation hearing can be had. The revocation hearing is not made conditional on the preliminary hearing; and obviously unless the revocation hearing resulted in a determination that the violation which it was reasonable to believe had been committed had, in fact, been committed, there would not be grounds for revocation. It would follow that where there has been a revocation hearing at which it has been found in accord with due process that there has been a violation, a subsequent preliminary hearing is purely supererogatory, and its absence under these circumstances violates no right of the parolee. And that is precisely what the Supreme Court decided in Morrissey.

It will be recalled that in Morrissey the record did not reveal whether there had been revocation hearings or not. In view of that the case was remanded to the District Court to make findings on what revocation procedures were actually had. And here is the significant direction (p. 490,92 S.Ct. p. 2605): 'If it is determined that petitioners admitted parole violations to the Parole Board, as Iowa contends, and if those violations are found to be reasonable grounds for revoking parole under state standards, that would end the matter.' Clearly if the District Court found that there was a revocation hearing which resulted in findings sufficient to sustain revocation, the absence of a preliminary hearing did not vitiate the determination.

A brief mention must be made of certain other facets of their proceeding. This is not a holding that the preliminary hearing provided for in Morrissey may be dispensed with or evaded. If it is not accorded promptly, an affected parolee may enforce it by appropriate application. It may, however, be obviated if the Board proceeds immediately upon a final revocation hearing, as Morrissey provides that only where there is a time lag is a preliminary hearing an element of due process. Furthermore, among the prescriptions of what would constitute a fair preliminary hearing is that it be held at or near the place of alleged violation or arrest. In the instant case Special Term decided that the hearing should be in the City of New York. What is 'reasonably near' depends on a consideration of all the circumstances. It would obviously not be feasible to hold the arrested parolee in a detention facility at a distance from the place of preliminary hearing, and if the latter place is New York City he would have to be lodged in one of the local jails. As the number of parolees and alleged parole violators is not inconsiderable, to retain them in the local correctional facilities would prove an additional burden on those overcrowded institutions. This factor should not be overlooked in deciding what is 'reasonably near.'

Considerable argument has been devoted to whether or not Morrissey is retroactive. The Court answered that (p. 490, 92 S.Ct. p. 2604): 'The few basic requirements set out above, which are applicable to Future revocations of parole, should not impose a great burden on any State's parole system.' (emphasis supplied)

Lastly, petitioner in his brief is critical of the validity of the revocation hearing. Obviously this was not before Special Term, as the matter was submitted before the hearing took place. Nor is it likely that the objections could have been passed on at Special Term. Nor are they properly before us. We have not passed on this matter and our decision is without prejudice to any proceeding that petitioner may care to bring to review that determination.

Judgment entered New York County October 4, 1972 (Spiegel, J.) annulling revocation of petitioner's parole should be reversed on the law and petition dismissed without costs; and the appeal from the order entered November 2, 1972, denying reargument should be dismissed.

Judgment, Supreme Court, New York County, entered on October 4, 1972, reversed, on the law, without costs and without disbursements, and the petition dismissed.

Appeal from order of said court, entered on November 2, 1972, dismissed, without costs and without disbursements.

All concur except STEVENS, P.J., and MURPHY, J., who dissent in a dissenting opinion by MURPHY, J.

MURPHY, Justice (dissenting).

We disagree and vote to affirm.

In order to fully understand what has heretofore transpired, we believe a fuller recitation of the underlying facts and sequence of events than appears in the majority's opinion is essential. In February 1971, petitioner was convicted of grand larceny in the second degree and sentenced to an indeterminate term of imprisonment not to exceed three years. In January, 1972, he was conditionally released from the Great Meadow Correctional Facility in Comstock under parole supervision. On April 13, 1972, he was arrested at the New York City office of the Parole Board for allegedly making false reports to his parole officer regarding his residence and employment and was held at the Manhattan House of Detention until April 20, 1972 when he was transferred to the Ossining Correctional Facility. On May 5, 1972, petitioner was declared delinquent by a member of the board of parole who acted solely on the written report of petitioner's parole officer. The procedures followed to this point were seemingly in accord with the applicable statute and regulations. (Correction Law, § 216; 7 N.Y.C.R.R. § 1.17.) All that now remained to complete the process was to hold a hearing before a three-member panel. (Correction Law, § 212, subd. 7; 7 N.Y.C.R.R. § 1.19.) Petitioner, however, perhaps anticipating what was to come, believed himself entitled to more. On May 19, 1972, he commenced the instant Article 78 proceeding in which he asserted that the above-outlined procedures were constitutionally defective since he had not been served with advance notice of the charges and had not been granted a preliminary hearing where, with the aid of counsel, he could have the opportunity to contest the charges against him and demonstrate the lack of probable cause to believe he had violated the conditions of his release.

On June 29, 1972, while this proceeding was still Sub judice, the Supreme Court handed down its landmark decision in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. After rejecting the supposition that the liberty of a parolee was merely a...