Tinsley v. New York State Bd. of Parole

• Decision Date: 01 March 1973
• Parties: In the Matter of the Application of Adolphia TINSLEY, Petitioner, For an Order Pursuant to Article 78 of the Civil Practice Law and Rules, v. NEW YORK STATE BOARD OF PAROLE, Respondent.
• Court: New York Supreme Court

Page 259

342 N.Y.S.2d 259

73 Misc.2d 289

In the Matter of the Application of Adolphia TINSLEY,

Petitioner, For an Order Pursuant to Article 78 of

the Civil Practice Law and Rules, v. NEW YORK STATE BOARD OF PAROLE, Respondent.

Supreme Court, Westchester County.

March 1, 1973.

William E. Hellerstein, Steven Lloyd Barrett, New York City, for petitioner.

Louis J. Lefkowitz, Atty. Gen., New York City by John Zenir, New York City, of counsel, for respondent.

JOHN C. MARBACH, Justice.

This is an Article 78 proceeding seeking to annul respondent's determination which revoked petitioner's conditional release and held him to his maximum expiration date.

The factual setting giving rise to this application begins with a judgment of the Supreme Court, New York County, dated March 11, 1971, whereby petitioner was sentenced to an indeterminate term of imprisonment with a maximum of four years upon a conviction of attempted sexual abuse. A maximum expiration date of October 16, 1973, was established. On June 16, 1972, petitioner was discharged on conditional release. ¹

Upon his discharge from the Ossining Correctional Facility at 9:15 A.M. on June 16, 1972, petitioner was ordered to proceed to the New York City Parole Office to make his initial report. Petitioner arrived there at approximately 12:20 P.M. and was interviewed by Parole Officer Bove in the absence of petitioner's assigned parole officer, a Mr. Barling. On the basis of the interview, Officer Bove obtained a parole warrant and petitioner was detained for violation of his conditional release. On July 7, 1972, following an interview with petitioner at the Ossining Correctional Facility on June 29, 1972, Officer Barling prepared a Report of Violation of Parole containing three charges:

1. On 6--16--72, the subject used an alcoholic beverage to excess and was admittedly intoxicated.

2. The subject, during his initial interview on 6--16--72 stated that he would refuse to abide by the rules governing parole except that he would make his scheduled office reports.

3. On 6--16--72 this subject constituted a menace to himself and to other persons in the community.

The violation report also states that petitioner, on June 16, 1972, was 'belligerent' and 'verbally abusive' to the parole officers who attempted to speak with him; that a half full bottle of whiskey was confiscated from him and that the parolee had an extensive criminal record including charges of 'drunken disorderly and assault' with a history of mental illness.

On August 3, 1972, a Parole Revocation Hearing was conducted at which petitioner was represented by counsel. He denied the charges. Officers Barling and Bove testified and were cross-examined. Petitioner's prior record of crimes was read into the record. After reviewing the case, the respondent determined on August 4, 1972, that petitioner should be held to serve the remainder of his maximum term.

The petition alleges that the violations of charges 1 and 2 were so insignificant as to render the respondent's determination arbitrary and capricious. It alleges as to charge 3 that although serious enough to warrant revocation, there was not substantial evidence to support the determination. Petitioner's argument on the intoxication charge proceeds upon a De minimis theory, admitting the intoxication but challenging the degree to which the inebriety had arisen ('merely high') and claiming the joy of the first day of freedom mitigated against the harsh effect of the rearrest and its consequences. Concerning charge 2, the argument contests the meaningful significance of this 'boast' when in an intoxicated state and seeks to dismiss it as a 'misunderstanding' by petitioner of his obligations. Charge 3 stands upon entirely different footing for in that regard it is argued that the finding of being a menace rests only upon the judgment of the parole officer who so testified and an inconclusive statement based upon petitioner's file that there was a history of assault and violence.

Respondent urges that these claims are addressed to the purely discretionary function of the parole revocation board and that although though CPLR 7803(3) on its face would allow for review of an abuse of discretion that cannot be permitted here without invading the sole province of the parole board. Moreover, respondent argues that a question of substantial evidence supporting the determination under CPLR 7803(4) can never be raised in this area. This latter argument, of course, will have an effect on whether referral to the Appellate Division is appropriate.

Petitioner does not raise any constitutional question involving procedural due process under People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238, or Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The petition is devoid of any claim that Morrissey standards (supra) were not met. The court treats any defects as waived. Nevertheless, the crux of his position is that petitioner is being illegally deprived of his freedom.

It has been held that the action of a Parole Board in declaring a parolee delinquent and directing that he be returned to prison to serve the remainder of his term is not reviewable in a proceeding pursuant to Article 78, People ex rel. Di Lorenzo v. Fay, 13 A.D.2d 1034, 217 N.Y.S.2d 347, motion for leave to appeal denied, 10 N.Y.2d 707, 221 N.Y.S.2d 1026, 178 N.E.2d 190. In Matter of Mummiami v. New York State Board of Parole, 5 A.D.2d 923, 171 N.Y.S.2d 1018, motion for leave to appeal denied, 5 N.Y.2d 709, 182 N.Y.S.2d 1025, 156 N.E.2d 463, reargument denied 7 N.Y.2d 756, 193 N.Y.S.2d 1030, 162 N.E.2d 757, cert. denied 362 U.S. 953, 80 S.Ct. 865, 4 L.Ed.2d 870, the court held that 'in the absence of a showing of a violation of a statutory duty, the action of the (Parole) Board is not subject to review.'

In Matter of Browne v. New York State Board of Parole, 25 Misc.2d 1050, 207 N.Y.S.2d 488, affirmed 12 A.D.2d 800, 211 N.Y.S.2d 1014, reversed on other grounds, 10 N.Y.2d 116, the lower court held that Article 78 could be used to review a determination revoking parole when the sole issue was whether the maximum term was properly computed by the parole board, a question of law. In a subsequent Article 78 case, People ex rel. Weber v. Division of Parole of the State of New York, 212 N.Y.S.2d 761 (Sup.Ct., West. Co.), cert. denied 369 U.S. 890, 82 S.Ct. 1165, 8 L.Ed.2d 290, Browne was distinguished and the principle was reiterated that in the absence of a showing that the parole board violated any positive statutory duty in revoking parole, the petition must be dismissed.

Traditionally, the writ of habeas corpus is most often utilized to test the legality of detention and imprisonment. It is an appropriate method to determine whether a parole revocation was lawfully effected. People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 379, 318 N.Y.S.2d 449, 450, 267 N.E.2d 238--239; People ex rel. Combs v. La Vallee, 29 A.D.2d 128, 132, 286 N.Y.S.2d 600, 604, app. dsmd., 22 N.Y.2d 857, 293 N.Y.S.2d 117, 239 N.E.2d 743; People ex rel. Warren v. Mancusi, 70 Misc.2d 90, 91, 332 N.Y.S.2d 442, 444; cf. People ex rel. Keitt v. McMann, 18 N.Y.2d 257, 273 N.Y.S.2d 897, 220 N.E.2d 653. Thus, the issue is not one of 'right to review' but rather 'scope of review'.

Respondent does not suggest, as was inferred by the court in Matter of Browne v. New York State Board of Parole, 25 Misc.2d 1050, 207 N.Y.S.2d 488, supra, that habeas corpus is the sole avenue available to the parolee. Rather, respondent argues that if Article 78 is utilized, the scope of review is limited to whether the determination was 'arbitrary and capricious' in light of procedural due process standards.

Correction Law, § 212, governs the duties and powers of the board of parole with respect to 'parole and conditional release and the revocation thereof' (subd. 1) and provides in subdivision 10 that

'Any action taken by the board pursuant to this article shall be deemed a judicial function and shall not be reviewable if done in accordance with law.'

This legislative limitation upon review of parole revocation determinations was not part of former Correction Law, § 218. Through amendment in 1968 and repeal in 1970, the provisions in Correction Law, § 218, were reenacted in a revised section 212, which is the controlling statute in this proceeding. Correction Law, § 212, covers both the procedure for granting release on parole and its revocation. It wasn't until July 8, 1970, that the revocation procedure thereby became subject to the limitation on judicial review that has previously only applied to Release upon parole, and even then it is only applicable to crimes committed after September 1, 1967.

This statutory history offers some insight into the problems that faced the courts under prior law. Thus, case law arising out of attempts to review denials of the right to release upon parole has always been clear-cut. It is a discretionary act not subject to review. Matter of Hines v. State Board of Parole, 293 N.Y. 254, 56 N.E.2d 572; Matter of O'Connor v. State Board of Parole, 270 App.Div. 93, 58 N.Y.S.2d 726; Matter of Briguglio v. New York State Board of Parole, 24 N.Y.2d 21, 298 N.Y.S.2d 704, 246 N.E.2d 512; People v. Pierre, 34 A.D.2d 1000, 312 N.Y.S.2d 686.

On the other hand, in the absence of any equivalent provision limiting review of parole revocation hearings, classification of the nature of the revocation hearing was always necessary, cf. People ex rel. Smith v. Deegan, 32 A.D.2d 940, 941, 303 N.Y.S.2d 789, 790--791. This presumes that the courts were willing to go beyond the statutory language (still present in section 212) characterizing the revocation hearing as only an opportunity to offer an explanation of the charges, and some courts were not so disposed, People ex rel. Ochs v. La Vallee 33 A.D.2d 80, 81, 307 N.Y.S.2d 982, 984. One early decision had gone so far as to...