Tremarco v. New York State Bd. of Parole
| Decision Date | 01 June 1982 |
| Citation | 87 A.D.2d 114,450 N.Y.S.2d 544 |
| Parties | In the Matter of Joseph TREMARCO, Respondent, v. NEW YORK STATE BOARD OF PAROLE et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Robert Abrams, Atty. Gen., New York City (Paul Jawin, Deputy Asst. Atty. Gen., New York City, of counsel) for appellants.
David Steinberg, Poughkeepsie, for respondent.
Before MOLLEN, P. J., and MANGANO, GIBBONS and THOMPSON, JJ.
On December 17, 1971, the petitioner was sentenced in the Supreme Court, Kings County, to an indeterminate term of imprisonment not to exceed 25 years upon his convictions for attempted murder in the second degree and related offenses. He was subsequently committed to the custody of the New York State Department of Correctional Services. Thereafter, on June 2, 1972, in the United States District Court for the District of New Jersey, the petitioner was sentenced to 16 years imprisonment upon his conviction for various Federal offenses. He was then returned to a State facility where, pursuant to his District Court conviction, a Federal warrant was lodged against him.
In May, 1976, after his first appearance before the Board of Parole, the petitioner was denied release. His next appearance was scheduled for May, 1978.
On May 5, 1978, two corrections officers took the petitioner and another inmate, Albert Victory, out of the Greenhaven Correctional Facility to have dental work done. During the course of this trip, Victory managed to escape.
In later explaining the incident, the officers reported that they had been set upon by three masked gunmen who had assisted Victory to make good his escape. The officers further reported that the petitioner had declined to join in the escape and had, in fact, released the corrections officers after the gunmen and Victory had departed. It was suggested that the petitioner's actions may well have saved the lives of the corrections officers.
As the petitioner's scheduled appearance before the Board of Parole grew near, Prisoners' Legal Services wrote a letter in his behalf to a senior parole officer at the Greenhaven Correctional Facility recounting this version of the events of May 5, 1978. In addition, one of the corrections officers involved wrote a letter directly to the board giving the same account of the incident. Both corrections officers subsequently appeared before a Dutchess County Grand Jury and repeated under oath their version of how Victory had come to escape.
All of this information was before the Board of Parole when it considered the petitioner for release. The petitioner himself appeared before the board and did not dispute the accounts of his heroic role in the incident.
On May 25, 1978, the Board of Parole, acting, inter alia, on the basis of reports of the petitioner's conduct during the escape, voted to grant him parole. He was subsequently paroled and was delivered into Federal custody to begin serving his Federal sentence.
On July 8, 1980, the New York State Investigations Commission notified the Chairman of the Board of Parole that newly-discovered evidence revealed that the initial version of the escape of Albert Victory had been a fabrication. According to the Commission, both corrections officers involved had admitted that, after taking Victory and the petitioner to the dentist, they brought them to a motel for a sexual assignation. Victory had entered one of the motel rooms with his girlfriend, and had subsequently escaped. Thereafter, in order to conceal their misconduct, the corrections officers had concocted the story of the three masked gunmen. It was then agreed that, in exchange for the petitioner's co-operation in the officers' efforts to suppress the true facts of the incident, they would write letters to the Board of Parole favorable to him.
On July 24, 1980, as a result of the information provided by the Investigations Commission, the Board of Parole voted that, pending a hearing, the parole granted to the petitioner would be temporarily rescinded. On the same date, the petitioner, who was incarcerated at the Federal penitentiary in Lewisberg, Pennsylvania, was notified by mail that "the parole granted to you effective June 30, 1978 by the New York State Board of Parole shall be temporarily rescinded pending a hearing regarding charges brought against you." Accompanying the letter was a "Notice of Rescission Hearing" which set forth four charges and which advised the petitioner of his rights. The notice fixed no hearing date, providing instead that "Rescission Hearing on these matters will be scheduled at an institution under the jurisdiction of the New York State Department of Correctional Services as soon as you are returned to an institution under the jurisdiction of the N.Y.S. Department of Correctional Services." A letter was also sent to the Warden of the Lewisberg facility advising him that the board had decided to rescind the petitioner's parole, and a detainer warrant was subsequently lodged against the petitioner at Lewisberg.
On or about December 8, 1980, the petitioner was transferred to the Federal Correctional Institution at Otisville, New York. New York authorities first became aware of the petitioner's transfer and his presence in this State when, on April 20, 1981, he commenced this article 78 proceeding. Thereafter, the authorities moved expeditiously to schedule a rescission hearing, contacting the Warden of the Otisville facility to ascertain his willingness and ability to produce the petitioner. No hearing was ever held, however, as an adjournment was granted pending the determination of the article 78 proceeding.
In the judgment appealed from, the court granted the petition, vacated the temporary rescission order and directed that the detainer warrant lodged against the petitioner be withdrawn. The court held that the board lacked statutory authority to rescind a parole grant after it had been finalized and had gone into effect, "at least within the context of the facts in the instant case." (Matter of Tremarco v. New York State Bd. of Parole, 109 Misc.2d 577, 580, 440 N.Y.S.2d 490.)
The respondents now appeal from the judgment. We reverse.
In our view, the Board of Parole which, as a body, may "its discretion * * * revoke or modify any of its decisions or determinations" (9 NYCRR 8000.4), has the power, for good cause shown, to rescind a...
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