State ex rel. McNeil v. New York State Bd. of Parole

• Decision Date: 30 June 1976
• Citation: 87 Misc.2d 497,385 N.Y.S.2d 731
• Parties: The STATE of New York ex rel. Terence McNEIL, by Joel H. Golub, Petitioner, v. NEW YORK STATE BOARD OF PAROLE, Superintendent Green Haven Correctional Facility, Respondents.
• Court: New York Supreme Court

Page 731

385 N.Y.S.2d 731

87 Misc.2d 497

The STATE of New York ex rel. Terence McNEIL, by Joel H Golub, Petitioner, v. NEW YORK STATE BOARD OF PAROLE, Superintendent Green Haven Correctional Facility, Respondents.

Supreme Court, Dutchess County.

June 30, 1976.

William E. Hellerstein, New York City, for petitioner; Joel H. Golub, New York City, Legal Aid Society, Parole Revocation Defense Unit, of counsel.

Louis J. Lefkowitz, Atty. Gen., State of N.Y., New York City, for respondents; John Zenir, Asst. Atty. Gen., New York City, of counsel.

THEODORE A. KELLY, Justice.

Petitioner moves herein by way of writ of Habeas Corpus for release from respondent's custody on the ground that he was denied due process at his parole revocation hearing. Petitioner further asserts that Correction Law § 803(5), to the extent that it denies a returned parolee or conditional release violator good time credit on the remaining portion of his maximum term if such portion does not exceed one year, is unconstitutional.

Petitioner was sentenced to an indeterminate term not to exceed 3 years on October 26, 1973 following conviction for Robbery in the Third Degree. Petitioner was paroled on November 25, 1974.

On October 30 a parole warrant was issued for petitioner's arrest. Petitioner was charged with the following violations of his parole:

1. That on October 30, 1975 he possessed methadone which had been illegally obtained.

2. That on October 30, 1975 he possessed three hypodermic instruments.

3. That since his release on parole he had amassed a large number of parking violations which he did not pay.

4. That during the end of July he was admittedly in the company of one Atlee Jones.

5. That since his release on parole, he had used methadone and marijuana.

6. That since his release he had stayed away from his approved residence without the knowledge or consent of his parole officer.

7. That on October 30, 1975 he possessed 40 rounds of ammunition for a .35 caliber rifle.

Petitioner was given a parole revocation hearing with counsel on January 15, 1976, at which time charges 2 and 5 were dismissed. At the conclusion of the hearing petitioner's parole was revoked and he was held to his maximum expiration date. Petitioner contends that the action of the parole board was illegal since he was not afforded an opportunity to confront and cross-examine adverse informants although his attorney had requested their production at the hearing. He further contends that the determination of the parole board was based upon hearsay testimony; that his motion to suppress the ammunition referred in Charge Number 7 should have been granted; that he was not furnished with meaningful reasons for the revocation of his parole and a statement of the evidence relied upon; that he was not furnished with an explanation of why punishment other than reincarceration was not imposed; and that he has not been allowed good time credit on the remainder of his sentence.

The Attorney General opposes the application as without merit.

A parole revocation hearing is in the nature of an administrative proceeding (People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 382, 318 N.Y.S.2d 449, 453, 267 N.E.2d 238, 241) for the purpose of determining whether a parolee has violated the conditions of his parole (People ex rel. Maggio v. Casscles, 28 N.Y.2d 415, 418, 322 N.Y.S.2d 668, 671, 271 N.E.2d 517, 519). It has been long recognized that actions taken by the parole board, whether to grant or to revoke parole, are deemed to be judicial functions and shall not be reviewable if done in accordance with law (People ex rel. Menechino v. Warden, supra; Correction Law § 212, subd. 10; Matter of Hines v. Board of Parole, 293 N.Y. 254, 56 N.E.2d 572). As long as the parole board does not run afoul of statutory mandates or violate procedural due process, its determination should remain free from judicial review (Matter of Paulsen v. New York State Board of Parole, 46 A.D.2d 661, 359 N.Y.S.2d 828).

In People ex rel. Warren v. Mancusi, 40 A.D.2d 279, 339 N.Y.S.2d 882, the Court held that the parole board has the burden of going forward with proof in the face of a denial of charges, and where no evidence is presented by the board which would satisfy it that a parole violation has occurred, a revocation of parole is unwarranted. The inability of a parolee to confront and to cross-examine adverse witnesses constitutes a lack of due process (People ex rel. Sammarco v. LeFevre, 78 Misc.2d 882, 358 N.Y.S.2d 905; People ex rel. Warren v. Mancusi, supra).

At the parole revocation hearing, respondents produced Parole Officer Walter McGuire. McGuire testified that petitioner had made his regular office visit on October 30, 1975 and that he observed a puncture mark on petitioner's left arm; that he then searched an attache case that petitioner was carrying and discovered a plastic bottle containing fluid residue; that a search of petitioner's car disclosed 5 more plastic bottles, one of which contained a fluid residue; that a search of the car also revealed a number of unanswered parking summonses; that petitioner acknowledged that the fluid residue in two of the plastic bottles was methadone; that he had obtained it from his former employer, Macro Systems, where he had interviewed people in a methadone detoxification program; McGuire stated that he contacted the Parking Violation Bureau and was advised that petitioner had failed to answer a large number of parking citations; that the search of petitioner's room also disclosed the 40 rounds of ammunition; that during the office visit of October 30, petitioner also admitted that he smoked marijuana on occasion; that petitioner also admitted that he had been in the company of Atlee Jones; that one Craig Brooks, another Parole Officer, advised him, McGuire, that one Mary Boise had also stated that petitioner had lived with the said Atlee Jones.

Based upon its examination of the record of the parole violation hearing, the Court finds that the evidence presented was insufficient to sustain Charge 4 and Charge 6. The proof of Charge 4 whereby petitioner was accused of having been in the company of Atlee Jones was based upon statements made by Parole Officer Brooks and Mary Boise, neither of whom testified at the hearing. Petitioner, therefore, was denied his right to confront and to cross-examine these witnesses (People ex rel. Warren v. Mancusi, supra; People ex rel. Sammarco v. LeFevre, supra).

There was no proof offered to sustain Charge 6, whereby petitioner was accused of having stayed away from his approved residence without the consent of his Parole Officer, other than the hearsay testimony of Parole Officer Brooks and Mary Boise that petitioner 'lived' with Atlee Jones. Such proof was, likewise, insufficient to sustain Charge 6.

The Court finds, however, that the evidence submitted was sufficient to sustain Charges 1, 3 and 7. There is no merit to petitioner's contention that the plastic bottles, the unanswered parking tickets and the ammunition were obtained as the result of an unlawful search and seizure. All inmates who are...