Soto v. New York State Bd. of Parole

• Decision Date: 14 January 1985
• Citation: 484 N.Y.S.2d 49,107 A.D.2d 693
• Parties: In the Matter of Raul SOTO, Appellant, v. NEW YORK STATE BOARD OF PAROLE, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 49

484 N.Y.S.2d 49

107 A.D.2d 693

In the Matter of Raul SOTO, Appellant, v. NEW YORK STATE BOARD OF PAROLE, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Jan. 14, 1985.

William E. Hellerstein, New York City (Roger Brazill, New York City, of counsel, Pamela Goldberg, New York City, on the brief), for appellant.

Robert Abrams, Atty. Gen., New York City (Melvyn Leventhal, Maryellen Weinberg, Asst. Attys. Gen., and Esther Furman, New York City, of counsel), for respondents.

Before MOLLEN, P.J., and TITONE, MANGANO, THOMPSON and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondents dated December 7, 1978 revoking petitioner's parole, petitioner appeals from a judgment of the Supreme Court, Dutchess County, dated August 2, 1982, which dismissed the petition as time barred.

Judgment affirmed, without costs or disbursements.

Petitioner was originally sentenced on September 9, 1975 to an indeterminate term of imprisonment of one year to life. This sentence was later reduced on September 11, 1979 to a term of one to five years. On September 30, 1976, petitioner was paroled, but on May 24, 1978 was declared delinquent as of February 15, 1978, owing to several parole violations, i.e., failure to make office reports, failure to notify his parole officer of the termination of his employment and leaving his residence program without the parole officer's approval. On May 9, 1978, petitioner was arrested on a new criminal charge and subsequently was indicted thereon. On June 9, 1978, petitioner waived his right to a preliminary parole revocation hearing. Thereafter, on December 1, 1978, petitioner was sentenced to a term of imprisonment of 7 1/2 to 15 years on the criminal charge for which he was arrested on May 9, 1978.

On December 7, 1978, after several adjournments, petitioner received his final parole revocation hearing and his parole was revoked.

The instant petition filed in 1982, alleged that (1) petitioner's final parole revocation hearing which took place on December 7, 1978, was untimely, in that it was not scheduled within 90 days of his waiver of the preliminary parole revocation hearing (see Executive Law, § 259-i, subd. 3, par. cl. ) and (2) vacatur of the parole violation warrant was therefore required.

In opposition to the petition the respondents alleged, as an affirmative defense, that the petition was time barred by reason of the four-month Statute of Limitations contained in CPLR 217.

Special Term dismissed the petition based on the four-month Statute of Limitations defense interposed by the respondents.

We affirm.

It is beyond cavil that vacatur of a parole violation warrant and reinstatement of parole is the appropriate remedy for an untimely final parole revocation hearing (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).

Accordingly, a habeas corpus proceeding is generally the appropriate vehicle to review parole revocation proceedings including the issue of whether a parolee has been denied his right to a prompt final parole revocation hearing (see People ex rel. Levy v. Dalsheim, supra ; People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 379, 318 N.Y.S.2d 449, 267 N.E.2d 238; People ex rel. Walker v. New York State Bd. of Parole, 98 A.D.2d 33, 469 N.Y.S.2d 780; People ex rel. Kellams v. Henderson, 58 A.D.2d 1022, 397 N.Y.S.2d 48; People ex rel. South v. Hammock, 80 A.D.2d 947, 438 N.Y.S.2d 34). However, it is also well established "that the remedy of habeas corpus is available only to one who is entitled to immediate release from the custody he is challenging" (People ex rel. Malinowski v. Casscles, 53 A.D.2d 954, 385 N.Y.S.2d 640, mot. for lv. to app. den. 40 N.Y.2d 809, 392 N.Y.S.2d 1027, 360 N.E.2d 1109; People ex rel. South v. Hammock, supra ). Since petitioner stands convicted pursuant to a judgment rendered December 1, 1978, which petitioner acknowledges in his petition (1) is not being challenged in any way and (2) "serves as an independent basis for present incarceration", it is clear, and petitioner's counsel so concedes in his brief, that, at this juncture, a habeas corpus proceeding would be premature and that a timely article 78 proceeding would be the proper vehicle to test the legality of respondents' revocation of petitioner's parole (People ex rel. South v. Hammock, supra ; Matter of Piersma v. Henderson, 44 N.Y.2d 982, 408 N.Y.S.2d 332, 380 N.E.2d 164; Matter of Smith v. Chairman of N.Y. State Bd. of Parole, 44 N.Y.2d 982, 408 N.Y.S.2d 332, 380 N.E.2d 164).

However, Special Term was correct in dismissing the instant article 78 proceeding as time barred by the appropriate Statute of Limitations. In Matter of Menechino v. Division of Parole, N.Y. City, 26 N.Y.2d 837, 838, 309 N.Y.S.2d 585, 258 N.E.2d 84, the Court of Appeals held that an article 78 proceeding commenced in July, 1968 to review a revocation of parole in May, 1965 was "barred by the four-months period of limitation prescribed" by CPLR 217.

Moreover, Matter of Menechino v. Division of Parole, N.Y. City (supra ) cannot be distinguished, as the dissent suggests, on the ground that the petitioner therein sought review of a purely discretionary act, i.e., the revocation of parole, rather than the performance of a duty enjoined upon the Parole Board by the Executive Law ( § 259-i, subd. 3, par. cl. ). In Matter of Menechino (supra ), petitioner alleged in an article 78 proceeding that the State Board of Parole's discretionary determination revoking his parole was improper due to the board's failure to comply with the mandates of due process, i.e., it failed to afford him counsel at his final parole revocation hearing.

In this regard Matter of Menechino (supra ) is indistinguishable from the case at bar where petitioner simply alleges in an article 78 proceeding that the board's discretionary determination revoking his parole was improper due to the board's failure to comply with the mandate of the Executive Law regarding the timeliness of his final parole revocation hearing.

The decision of the Appellate Division, Third Department, in Matter of Kenny v. Loos, 286 App.Div. 97, 140 N.Y.S.2d 817, and that of the Court of Appeals in Lindsay v. New York State Bd. of Parole, 48 N.Y.2d 883, 424 N.Y.S.2d 883, 400 N.E.2d 1335, cited by the dissent, do not involve article 78 proceedings to review determinations revoking parole, and are therefore irrelevant to the case at bar.

Accordingly, the article 78 proceeding commenced herein over three years after the respondents' revocation of petitioner's parole, must be dismissed as barred by the four-month period of limitation prescribed by CPLR 217 (Matter of Menechino, supra ).

MANGANO, THOMPSON and LAWRENCE, JJ., concur.

MOLLEN, P.J., dissents and votes to reverse the judgment appealed from, and remit the matter to the Supreme Court, Dutchess County, for an adjudication of the merits, with a memorandum, in which TITONE, Justice, concurs.

The question presented on this appeal is whether the petitioner's CPLR article 78 proceeding was barred by CPLR 217, which prescribes the time within which a proceeding against a body or officer must be commenced. Special Term and a majority of this court have concluded that the proceeding was time barred. This conclusion requires the petitioner to wait until he completes his sentence of 7 1/2 to 15 years, imposed in an unrelated case, before he can again present the same claim pursuant to a writ of habeas corpus concerning the validity of the revocation of his parole--a claim which clearly appears to be meritorious. I disagree with Special Term and a majority of this court and therefore vote to reverse.

Section 259-i (subd. 3, par. cl. ) of the Executive Law provides:

"Revocation hearings shall be scheduled to be held within ninety days of the probable cause determination. However, if an alleged violator requests and receives any postponement of his revocation hearing, or consents to a postponed revocation proceeding initiated by the board, or if an alleged violator, by his actions otherwise precludes the prompt conduct of such proceedings, the time limit may be extended."

In 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 on mem at App Div, this court ordered that the relator be restored to parole because of the failure to schedule a final parole revocation hearing within the time prescribed by the quoted section of the Executive Law. We explained (pp. 827-828, 411 N.Y.S.2d 343):

"Though there is an absence of legislative history on the question of whether the statute is to be strictly construed or to be considered merely as a guideline, the language clearly indicates that the legislative intent was to create a time period beyond which any delay was unreasonable per se. Prior to the enactment of the above statute, courts generally made ad hoc determinations on the 'reasonableness' of the delay * * * The statute, however, now makes clear that a delay beyond 90 days after the probable cause determination is unreasonable per se (unless the exceptions provided for in the statute are applicable). Although the statute does not specify a remedy, it seems clear to this court that vacatur of the warrant and reinstatement of parole is the only appropriate remedy * * * To merely order a hearing within a specified time would render the 90-day limit a nullity" (accord Matter of Garland v. New York State Div. of Parole, 86 A.D.2d 848, 447 N.Y.S.2d 446; People ex rel. Herrera v. Schager, 93 A.D.2d 847, 461 N.Y.S.2d 75; People ex rel. Vega v. New York State Div. of Parole, 96 A.D.2d 605, 464 N.Y.S.2d 1015).

Thus, the New York State Board of Parole is statutorily obligated to schedule a final parole revocation hearing within 90 days of the probable cause...