New York Law Review

Tag: Parole Revocation

  • People ex rel. আলোচনা Allen v. Warden, 54 N.Y.2d 583 (1981): Parole Revocation Hearings and the 90-Day Rule

    People ex rel. আলোচনা Allen v. Warden, 54 N.Y.2d 583 (1981)

    When a parole revocation hearing is adjourned multiple times, even at the request of the parolee, and is ultimately held in absentia near the 90-day statutory limit, any procedural irregularities do not automatically warrant vacating the parole violation warrant if a new hearing can adequately protect the parolee’s rights.

    Summary

    Allen, a parolee, had his final parole revocation hearing adjourned three times, with at least two continuances at his request. On the 81st day, the hearing was held in his absence because he was attending a criminal trial. The hearing officer, noting the impending 90-day limit under Executive Law § 259-i(3)(f)(i), proceeded in absentia, preserving Allen’s right to cross-examination later. Allen’s parole was revoked, and he sought a writ of habeas corpus, which was granted to the extent of ordering a new hearing. The New York Court of Appeals affirmed, holding that the warrant need not be vacated simply because a new hearing could not be held within the 90-day limit, absent evidence of bad faith by the respondent, and a new hearing adequately protects Allen’s rights.

    Facts

    Allen was a parolee whose final parole revocation hearing was adjourned on three separate occasions.

    At least two of those adjournments were at Allen’s request.

    On the 81st day after the warrant was issued, the revocation hearing was held without Allen because he was attending a separate criminal trial.

    The hearing officer noted the 90-day statutory time limit for the hearing.

    The hearing officer decided to proceed with the hearing in Allen’s absence but preserved Allen’s right to cross-examine witnesses at a later date.

    Allen’s parole was revoked.

    Procedural History

    Allen petitioned for a writ of habeas corpus.

    The lower court granted the petition, ordering a new parole revocation hearing.

    The New York Court of Appeals affirmed the lower court’s order.

    Issue(s)

    Whether a parole revocation warrant must be vacated when a revocation hearing is held in absentia due to the parolee’s attendance at a criminal trial, and a new hearing cannot be held within the 90-day limit specified by Executive Law § 259-i(3)(f)(i).

    Holding

    No, because absent evidence of bad faith by the respondent, any shortcomings in the revocation hearing raise only a question of irregularity in the statutory procedures, and a new hearing adequately protects the parolee’s rights.

    Court’s Reasoning

    The court reasoned that the focus should be on whether the parolee’s rights are adequately protected, rather than on strict adherence to the 90-day rule when circumstances, such as the parolee’s own requests for adjournment or attendance at a criminal trial, contribute to the delay.

    The Court emphasized that there was no evidence of bad faith on the part of the respondent (the Warden or parole authorities). This lack of bad faith was a crucial factor in the court’s decision. If there had been evidence that the parole authorities deliberately delayed the hearing to prejudice the parolee, the outcome might have been different.

    The court stated that “inasmuch as there is no evidence of bad faith here by respondent, any shortcomings in the revocation hearing raise only a question of irregularity in the statutory procedures.”

    The Court concluded that ordering a new hearing, where the parolee could fully participate and exercise his rights, was a sufficient remedy. Vacating the warrant entirely would be an overly drastic measure, especially considering the circumstances of the delay. The court reasoned there was “no logical basis for holding that the warrant must be vacated merely because a new hearing could not be held within the 90-day limit. A new hearing adequately protects relator’s rights.”

  • People ex rel. Knowles v. Smith, 54 N.Y.2d 259 (1981): Sufficiency of Notice in Parole Revocation Hearings

    People ex rel. Knowles v. Smith, 54 N.Y.2d 259 (1981)

    In parole revocation hearings, notice to the parolee’s attorney of record constitutes sufficient notice to the parolee, satisfying due process requirements, provided such notice is timely and allows the parolee to request detailed reports and prepare an application for relief.

    Summary

    Knowles, a parolee, was re-arrested and charged with unlawful imprisonment, leading to a parole violation warrant. Following a final revocation hearing, his parole was revoked. Knowles argued that the notification of the parole revocation decision was untimely and improperly served only on his attorney, not him personally, thus violating his due process rights. The New York Court of Appeals held that notice to the attorney of record constitutes sufficient notice to the parolee, satisfying due process, as long as it is timely and allows the parolee to seek further information and prepare a response. The court emphasized the practical aspects of administering parole regulations and the importance of balancing individual rights with administrative efficiency.

    Facts

    Knowles was initially sentenced to prison for robbery and sexual abuse, later paroled, and then re-incarcerated for violating parole conditions. He was paroled again but arrested shortly after for unlawful imprisonment. A parole violation warrant was issued. He requested an adjournment of his final revocation hearing until the criminal charges were resolved, eventually pleading guilty to attempted assault. After requesting his final revocation hearing, it was held on September 20, 1979. Forty-one days later, his attorney received a letter stating Knowles’ parole was revoked. Knowles claimed he did not receive the “Finding of Fact and Recommended Disposition” with his copy of the letter.

    Procedural History

    Knowles filed a pro se writ of habeas corpus challenging the parole revocation. The Supreme Court dismissed the writ, finding the delay was not excessive. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the notification of a parole revocation decision solely to the parolee’s attorney, 41 days after the hearing, satisfies the due process requirement of timely and sufficient notice to the parolee.

    Holding

    Yes, because notice to the attorney of record constitutes sufficient notice to the parolee, satisfying due process, as long as it is timely and allows the parolee to seek further information and prepare a response.

    Court’s Reasoning

    The Court of Appeals acknowledged that parolees have a constitutionally protected liberty interest. It emphasized that while promptness and accountability are required in parole revocation proceedings, the notification of the revocation hearing decision must be “as soon as practicable,” as stated in 9 NYCRR 8005.20(f). The court stated that the term “practicable” underscores the need to consider the realities of everyday administration. The court reasoned that “it is notification, not personal notification, that is a requirement of due process.” Absent legislation to the contrary, notice to the attorney serves as notice to the client. The court noted that Executive Law § 259-i(3)(f)(xi) requires the written statement to “be made available” to the alleged violator and counsel, which was satisfied by transmitting it to counsel. The court also pointed out that Knowles did not prove the original notice to his attorney lacked the enclosure, nor did he inquire with his attorney about it. The court found that reading the regulation as a preferred norm for giving notice was consistent with the statute and due process. The court reasoned that Knowles had timely notice of the revocation hearing outcome through his attorney, which enabled him to request a detailed report and prepare an application for relief, thus not unduly curtailing his rights. The court emphasized that each case must be judged on its facts to determine if notification was sent as soon as practicable, considering factors such as complexity, delay, validity of explanations, and practical necessity.

  • People ex rel. McGee v. Walters, 62 N.Y.2d 317 (1984): Sufficiency of Evidence in Parole Revocation Hearings

    People ex rel. McGee v. Walters, 62 N.Y.2d 317 (1984)

    In parole revocation hearings, the statutory presumption of firearm possession in a vehicle, coupled with observations of suspicious behavior by the parolee, can provide sufficient evidence to support a finding of parole violation, and the failure to request production of documents or an adjournment to obtain them waives the right to raise that issue on appeal.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that sufficient evidence supported the hearing officer’s determination that McGee violated his parole by possessing firearms. The court relied on the statutory presumption concerning firearm possession in automobiles, along with testimony from arresting officers about McGee’s suspicious movements in the vehicle after being pulled over. Furthermore, because McGee did not request the production of police reports or an adjournment to obtain them at the hearing, the court found that he could not raise this issue on appeal. The hearing officer’s express statement that the decision did not rely on hearsay further solidified the Court’s reasoning.

    Facts

    McGee, a parolee, was in a car that was pulled over by police. After being signaled to stop, McGee bent forward beneath his seat and then leaned toward the passenger. A search of the vehicle revealed two firearms. At the parole revocation hearing, arresting officers testified about McGee’s movements. The hearing officer determined that McGee violated his parole by possessing the firearms.

    Procedural History

    Following the parole revocation hearing, the hearing officer found that McGee violated the terms of his parole. The Appellate Division affirmed the hearing officer’s decision. McGee appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the statutory presumption regarding firearm possession in automobiles, combined with the arresting officers’ testimony, was sufficient to support the determination that McGee violated his parole.

    2. Whether McGee’s failure to request the hearing officer to direct the production of the police report or an adjournment to obtain it, waived his right to raise that issue on appeal.

    Holding

    1. Yes, because the statutory presumption concerning possession of firearms in automobiles (Penal Law, § 265.15, subd 3), especially when coupled with the testimony of the arresting officers regarding McGee’s suspicious behavior, was sufficient to support the hearing officer’s determination.

    2. Yes, because in view of McGee’s failure to request the hearing officer to direct that Police Officer Boorman produce his crime report or that the hearing be adjourned for that purpose, the question McGee wished to raise in that regard was not preserved for review.

    Court’s Reasoning

    The Court of Appeals found that the statutory presumption of firearm possession in an automobile, combined with the officers’ testimony about McGee’s suspicious movements, provided sufficient evidence to support the parole violation determination. The court emphasized that McGee bent forward beneath his seat and then leaned over towards the passenger after being signaled to pull over, strengthening the inference of possession. The court explicitly stated that the hearing officer’s decision did not rely on hearsay evidence, thus avoiding any issues related to the admissibility of such evidence under Morrissey v. Brewer. Furthermore, the Court emphasized a procedural default: because McGee failed to request the production of the police report or an adjournment to obtain it during the hearing, he waived his right to raise that issue on appeal. The court reasoned that parties must preserve issues for review by raising them at the appropriate time in the lower proceedings. The court noted that McGee did not apply for relief regarding the “notes or memorandum” referred to in a letter, further supporting the waiver. This case highlights the importance of timely raising evidentiary objections and requests for document production at administrative hearings to preserve those issues for appellate review.

  • People ex rel. Spinks v. Harris, 53 N.Y.2d 784 (1981): Lawfulness of Re-arrest After Erroneous Parole Release

    53 N.Y.2d 784 (1981)

    When a parole board issues a release order, the Department of Correctional Services cannot unilaterally revoke that order and re-incarcerate the released individual without due process or proper legal basis.

    Summary

    James Henry Spinks was released on parole based on a certification by the Department of Correctional Services (DOCS) that he had served his minimum term. Subsequently, DOCS determined the release was an error, and without informing the Parole Board or seeking to vacate the release order, correctional officers re-arrested Spinks. The New York Court of Appeals held that Spinks’ re-arrest and incarceration were unlawful because the original parole order remained valid and had not been withdrawn by the Parole Board. The court granted Spinks’ application for a writ of habeas corpus, ordering his release on parole, but without prejudice to the right of the respondent or the Board of Parole to institute such proceedings or take such other action to correct the alleged error, as they may be advised.

    Facts

    • James Henry Spinks was released from custody on August 26, 1978, pursuant to an order from the Board of Parole.
    • The release was based on DOCS certification that Spinks had completed his minimum term.
    • Later, DOCS employees concluded the parole order was based on an erroneous computation.
    • Without informing the Parole Board or seeking to vacate its order, correctional officers arrested Spinks at his home in November 1978 and returned him to prison.

    Procedural History

    • Spinks sought a writ of habeas corpus, arguing his re-arrest and incarceration were unlawful.
    • The lower courts denied the writ.
    • The New York Court of Appeals reversed, granting the writ and ordering Spinks’ release on parole.

    Issue(s)

    1. Whether the Department of Correctional Services has the authority to unilaterally revoke a parole release order and re-incarcerate an individual based on its own determination of an error in the original release calculation, without involving the Parole Board or seeking judicial review.

    Holding

    1. No, because the Board of Parole issued an order authorizing the relator’s release and that this order had not been withdrawn by the board, his arrest and incarceration is without any lawful basis in the record.

    Court’s Reasoning

    The Court of Appeals emphasized that the Board of Parole had issued a valid order authorizing Spinks’ release, and this order had not been withdrawn. The court found that DOCS acted without lawful basis in re-arresting and incarcerating Spinks without informing the Parole Board or seeking to vacate the release order. The court reasoned that DOCS could not unilaterally override the Parole Board’s decision. The court explicitly stated that its determination was “without prejudice to the right of the respondent or the Board of Parole to institute such proceedings or take such other action to correct the alleged error, as they may be advised.” Justice Jasen dissented, arguing that DOCS had the authority and duty to correct the mistaken release, citing CPL 430.20(1), which mandates detention until the sentence is complied with. The dissent also relied on People v. Cavelli, 50 N.Y.2d 919, noting that mistaken release does not automatically confer a right to continued liberty. However, the majority’s decision highlights the importance of respecting the Parole Board’s authority and ensuring due process before re-incarcerating someone released under a valid parole order.

  • People ex rel. Gonzales v. New York State Board of Parole, 48 N.Y.2d 46 (1979): Parolee’s Right to Prompt Hearing Despite Out-of-State Incarceration

    People ex rel. Gonzales v. New York State Board of Parole, 48 N.Y.2d 46 (1979)

    A parolee is entitled to a prompt final parole revocation hearing, even when incarcerated in another state, unless the Board of Parole demonstrates that such a hearing cannot be held subject to its convenience and practical control.

    Summary

    Gonzales, a New York parolee, was incarcerated in New Jersey on new charges. New York issued a parole violation warrant but lodged it as a detainer. After completing his New Jersey sentence, Gonzales was transferred to New York, where revocation hearings were held. He argued these hearings were not prompt. The New York Court of Appeals held that Gonzales was entitled to prompt hearings, even during his out-of-state incarceration, unless the Parole Board could demonstrate that holding the hearings was impractical. The court emphasized the ease of interstate cooperation and the Board’s failure to show any actual impediment to holding timely hearings.

    Facts

    In December 1973, Gonzales was sentenced in New York to an indeterminate prison term. He was paroled to New Jersey in December 1976, subject to a New Jersey parole violation warrant. He was later paroled in New Jersey in April 1977, with New Jersey agreeing to supervise his New York parole. In May 1978, Gonzales was arrested in New Jersey and held on bail. New Jersey informed New York of the arrest. New York did not issue a parole violation warrant at that time. Gonzales was convicted in New Jersey of statutory rape, desertion, and nonsupport. New York issued a parole violation warrant in December 1978, lodging it as a detainer.

    Procedural History

    After Gonzales completed his New Jersey sentence in March 1979, he was transferred to New York. A preliminary parole revocation hearing was held on March 16, 1979, and a final revocation hearing was held on May 28, 1979, resulting in the revocation of his parole. Gonzales then filed a petition for a writ of habeas corpus, arguing denial of his right to prompt revocation hearings. Special Term dismissed the petition. The Appellate Division affirmed, holding that Gonzales’ right to hearings accrued only upon his return to New York. Two justices dissented. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether a parolee, incarcerated in another state, is entitled to a prompt parole revocation hearing in New York, or whether the right to such a hearing is suspended until the parolee is physically returned to New York.

    Holding

    Yes, because a parolee is entitled to prompt revocation hearings if he is “subject to the convenience and practical control of the Parole Board,” and the burden of showing that the parolee is “beyond its convenience and control” lies with the Parole Board.

    Court’s Reasoning

    The court emphasized that a preliminary revocation hearing must be held within 15 days of the warrant’s execution, and the final hearing within 90 days of the preliminary hearing, as per Executive Law § 259-i. The court distinguished its holding from Moody v. Daggett, noting New York’s commitment to prompt hearings even when a parolee is incarcerated on new charges. The court reasoned that modern interstate cooperation makes it easier for New York to conduct hearings even when the parolee is in another state. The Board of Parole bears the burden of proving that holding a hearing in a timely fashion was impractical. The court stated, “In view of the relative ease of interstate communication and transportation and the vitality of legal and practical interstate co-operation today we perceive no sufficient justification for laying down a per se rule that imprisonment in a sister State means necessarily and always that the imprisoned parolee is not subject to the convenience and control of New York State parole authorities.” The court pointed to the Interstate Compact for Out-of-State Parolee Supervision (Executive Law § 259-m) which facilitates such cooperation. The court concluded that because New York failed to demonstrate any actual difficulty in holding a prompt hearing, Gonzales’ rights were violated. The court stated, “On this record it cannot be said that the New York State Board of Parole has met its burden of showing that relator was not or could not easily have been brought within its convenient and practical control during the period from December 15, 1978 to March 1, 1979. To characterize the present situation otherwise would be to denigrate the significance of the interstate compact to which all 50 States are parties and to ignore the failure of the Parole Board to advance other than hypothetical obstacles.”

  • People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376 (1971): Preserving Issues for Appellate Review

    27 N.Y.2d 376 (1971)

    An appellate court will generally not consider issues raised for the first time on appeal that were not presented in the lower courts.

    Summary

    The New York Court of Appeals affirmed the Appellate Division’s order, holding that the relator, Menechino, could not raise the issue of the standard of proof used by the State Board of Parole for the first time before the Court of Appeals. Menechino argued that the Board used a constitutionally impermissible standard (preponderance of evidence). The Court of Appeals found that because this issue wasn’t raised in the Supreme Court or at the Appellate Division, it couldn’t be considered at this stage. The court further noted, even if they were to consider a related argument about the sufficiency of the evidence, there was substantial evidence to support the Board’s determination.

    Facts

    The relator, Menechino, was adjudged in violation of parole by the State Board of Parole. He then sought relief, arguing that the parole revocation was improper. The Supreme Court initially granted his petition on grounds that were later rejected by the Appellate Division. Menechino appealed to the New York Court of Appeals.

    Procedural History

    The Supreme Court initially granted Menechino’s petition. The Appellate Division reversed the Supreme Court’s decision. Menechino then appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether the New York Court of Appeals can consider an argument that the State Board of Parole employed a constitutionally impermissible standard of proof when that argument was not raised in the lower courts (Supreme Court and Appellate Division)?

    2. Whether the determination of the Board of Parole was supported by substantial evidence?

    Holding

    1. No, because this issue was not raised in the Supreme Court or at the Appellate Division, it may not be raised for the first time in the Court of Appeals.

    2. Yes, because there was substantial evidence in the record to sustain the determination of the Board of Parole.

    Court’s Reasoning

    The Court of Appeals relied on the established principle that issues must be preserved for appellate review. It cited Cohen and Karger, Powers of the New York Court of Appeals, stating that arguments not raised in lower courts are generally barred from consideration on appeal. As the court stated, “Inasmuch as this issue was not raised in the Supreme Court or at the Appellate Division it may not be raised in our court.” The court also briefly addressed Menechino’s argument regarding the sufficiency of the evidence, finding that even if it were properly before them, there was substantial evidence to support the Board’s decision. The court noted the relator abandoned the original argument on which the Supreme Court had granted relief.

  • People ex rel. Dowdy v. Smith, 48 N.Y.2d 477 (1979): Collateral Estoppel in Parole Revocation Hearings After Entrapment Defense

    People ex rel. Dowdy v. Smith, 48 N.Y.2d 477 (1979)

    A prior acquittal based on the defense of entrapment in a criminal proceeding collaterally estops the Board of Parole from revoking parole on the basis of the transactions proved and admitted in the criminal action.

    Summary

    Dowdy, a parolee, was arrested and charged with drug offenses. He was also served with a parole violation notice based on the same offenses. At his criminal trial, Dowdy successfully argued an entrapment defense and was acquitted. Subsequently, at his parole revocation hearing, Dowdy argued that his acquittal collaterally estopped the Parole Board from revoking his parole. The Parole Board rejected this argument, but the Supreme Court granted a writ of habeas corpus. The Appellate Division reversed. The New York Court of Appeals reversed the Appellate Division, holding that the successful entrapment defense in the criminal trial precluded the Parole Board from revoking parole based on the same conduct. This was because the prior acquittal, specifically based on entrapment which Dowdy had the burden of proving, barred relitigation of that issue.

    Facts

    Relator Dowdy was on parole for robbery and weapons possession.
    He was arrested and indicted on charges related to the sale and possession of controlled substances.
    He received a parole violation notice based on the same drug offenses, alleging violation of parole rule 12 (prohibiting illegal drug use/possession).
    At the criminal trial, Dowdy asserted the affirmative defense of entrapment.
    The jury acquitted Dowdy on all counts.

    Procedural History

    Dowdy faced a parole revocation hearing where he argued that the criminal acquittal based on entrapment collaterally estopped the parole revocation.
    The Parole Board rejected Dowdy’s collateral estoppel argument and sustained the parole violations.
    Dowdy petitioned for a writ of habeas corpus; the Supreme Court granted the writ, upholding Dowdy’s collateral estoppel defense.
    The Appellate Division reversed the Supreme Court’s decision.
    The New York Court of Appeals reversed the Appellate Division’s decision and reinstated the Supreme Court’s judgment.

    Issue(s)

    Whether a prior acquittal in a criminal proceeding, based on the affirmative defense of entrapment, collaterally estops the Board of Parole from revoking parole based on the same conduct.
    Whether entrapment is a valid defense to an alleged violation of a parole rule prohibiting the use, possession, or purchase of illegal drugs.

    Holding

    Yes, because the successful assertion of the entrapment defense in the criminal trial precludes the Parole Board from relitigating the issue of whether the parolee’s actions were induced by law enforcement.
    Yes, because fundamental fairness dictates that a parolee’s possession or sale of drugs induced by law enforcement officials cannot be the basis for parole revocation.

    Court’s Reasoning

    The Court of Appeals addressed the applicability of collateral estoppel in this case. The court found identity of parties sufficient because “the People as prosecutors in the criminal action stood in sufficient relationship with the Division of Parole in the parole proceeding”.

    Regarding the identity of issues, the court stated, “the criminal acquittal in this case constituted a conclusive finding that relator’s conduct was induced by entrapment.” The court reasoned this was a case of “issue preclusion.” Having had “a full and fair opportunity to contest” the claim that relator’s possession and sale of drugs was induced by law enforcement, the People are bound by the prior adverse factual determination. Any difference in the objectives of the two proceedings does not change the application of collateral estoppel.

    The court distinguished this case from others where criminal acquittals did not bar parole revocation. In those cases, the criminal acquittal merely indicated a failure to prove guilt beyond a reasonable doubt, while the parole revocation proceeding had a lower burden of proof. In this case, Dowdy had the burden of proving entrapment by a preponderance of evidence in the criminal trial and he succeeded. In the parole revocation hearing, the state had the burden of proving the violation.

    As to whether entrapment is a defense to a parole violation, the court stated, “If the particular possession or sale of the drugs has been induced by the conduct of law enforcement officials, any standard of elemental fairness would dictate that possession or sale so induced may not be made the basis for revocation of parole.”

  • People ex rel. Combs v. LaVallee, 29 N.Y.2d 23 (1971): Right to Counsel at Parole Revocation Hearings After Criminal Conviction

    People ex rel. Combs v. LaVallee, 29 N.Y.2d 23 (1971)

    A parolee is entitled to the assistance of counsel during a final parole revocation hearing, even if the revocation is based on a new criminal conviction committed while on parole.

    Summary

    Combs, a former state prisoner on parole, had his parole revoked after being convicted of third-degree assault. The Parole Board denied him the right to counsel at his final revocation hearing, citing a regulation that barred counsel for parolees convicted of new crimes. Combs sought habeas corpus relief, which was initially granted by the Wyoming County Court. The Appellate Division reversed, but the New York Court of Appeals reversed the Appellate Division, holding that the parolee was entitled to counsel. The Court of Appeals emphasized that revocation is not automatic and counsel could influence the Board’s decision regarding the length of time before the prisoner is reconsidered for parole.

    Facts

    In 1970, Combs was convicted of felonious sale of a dangerous drug and sentenced to a maximum of five years. He was released on parole in November 1971. In February 1972, a parole violation warrant was issued based on allegations of assault, associating with a criminal, failing to report to his parole officer, and absconding from supervision. He was arrested in Florida and returned to New York where he pleaded guilty to third-degree assault. At the parole revocation hearing, he was denied counsel because of the assault conviction. His parole was revoked based on the conviction and absconding.

    Procedural History

    Combs sought habeas corpus relief in Wyoming County Court, which granted his release and return to parole supervision. The Appellate Division reversed this decision. The New York Court of Appeals then reversed the Appellate Division, reinstating the County Court’s judgment.

    Issue(s)

    Whether a parolee convicted of a new crime committed while on parole is entitled to the assistance of counsel at a final parole revocation hearing.

    Holding

    Yes, because revocation is not automatic and counsel could influence the Parole Board’s discretion regarding the length of time before the prisoner is reconsidered for parole, and other factors related to the sentence.

    Court’s Reasoning

    The Court of Appeals relied on its prior holding in People ex rel. Menechino v. Warden, which established the right to counsel at parole revocation hearings. While the Supreme Court’s decision in Gagnon v. Scarpelli made the right to counsel dependent on the circumstances of each case, the New York Court of Appeals stated it was not required to retreat from its holding in Menechino, which was based, in part, on the State Constitution.
    Even with a new criminal conviction, revocation is not automatic; it rests in the Parole Board’s discretion. “The offense committed or the circumstances, including the facts which may have induced a plea to a lesser offense, surrounding the crime may be such that counsel by offering testimony or effective reasoning might persuade the board not to revoke parole.” Moreover, counsel can assist in determining the period of time before the prisoner is reconsidered for parole. Effective counsel may be able to obtain more favorable treatment for the parolee.
    The Court invalidated a Parole Board regulation (7 NYCRR 1.19 [c]) that barred counsel from final parole revocation hearings for parolees convicted of a crime while on parole, finding it inconsistent with the parolee’s right to counsel under the State Constitution.

  • In re Anthony R., 29 N.Y.2d 532 (1971): Juvenile Parole Revocation Requires Due Process

    In re Anthony R., 29 N.Y.2d 532 (1971)

    Juvenile parolees, like adult parolees, are entitled to due process protections, including notice, a hearing, and the assistance of counsel, before their parole can be revoked.

    Summary

    This case addresses whether juvenile delinquents have a right to a hearing and the assistance of an attorney before their parole is revoked. Two juveniles, Anthony R. and Roderick R., had their parole revoked without a hearing after new delinquency petitions were filed against them, even though the charges were dismissed. The New York Court of Appeals held that due process requires a fair hearing, including the right to counsel, before a juvenile’s parole can be revoked. The court reasoned that revocation of parole constitutes a deprivation of liberty, triggering due process protections. This ensures a fair and accurate determination of whether parole conditions were violated.

    Facts

    Anthony R. and Roderick R. were adjudged juvenile delinquents in November 1966 and placed on probation.
    In July 1967, their probation was revoked, and they were placed in Highland State Training School for 18 months.
    They were paroled, but neither they nor their parents were informed of the conditions of parole.
    In June 1970, new juvenile delinquency petitions, alleging assault and petit larceny, were filed against them, but the charges were dismissed.
    Their parole was revoked without a hearing based on the dismissed charges, and they were returned to the training school.

    Procedural History

    The boys’ law guardian sued out writs of habeas corpus, arguing that the lack of a hearing violated due process.
    Special Term denied the requested relief.
    The Appellate Division reversed, sustained the writs, and ordered the boys discharged, concluding that due process requires a fair hearing before parole revocation.

    Issue(s)

    Whether juvenile delinquents have a right to a hearing and the assistance of an attorney before their parole can be revoked.

    Holding

    Yes, because due process demands notice, a hearing, and the aid of counsel before a juvenile’s parole can be revoked. “[T]he proceeding involves a deprivation of liberty just as much as did the original criminal action and, by that token, falls within the protective ambit of due process.”

    Court’s Reasoning

    The court relied on the principle established in People ex rel. Menechino v. Warden, which granted adult parolees the right to counsel in revocation hearings. The court extended this principle to juveniles, emphasizing that a parolee may not be deprived of liberty without a hearing to determine if parole was violated. The court quoted Powell v. Alabama stating that the right to be heard would be “of little avail if it did not comprehend the right to be heard by counsel”. The court stated, “[N]o tribunal, whether board or court, should be allowed to base its determination on a possibly mistaken view of the facts owing to the parolee’s inability, absent counsel, to make a proper factual presentation.”

    The court also cited In re Gault, stating that fundamental fairness and due process require that a juvenile be accorded basic rights, including notice of the charges, right to counsel, right to confrontation and cross-examination, privilege against self-incrimination, right to a transcript of the proceedings, and right to appellate review.

    The court rejected the argument that the hearing should be informal, noting that the appearance and actuality of fairness are essential for juveniles. Citing In re Gault, the court stated, “They suggest that the appearance as well as the actuality of fairness, impartiality and orderliness—in short, the essentials of due process—may be a more impressive and more therapeutic attitude so far as the juvenile is concerned”.

    The court emphasized that a lawyer’s assistance is needed to marshal the facts and introduce evidence of mitigating circumstances to present the juvenile’s case. Quoting from Menechino, “participation by counsel need be no greater than is required to assure, to the court as well as to the parolee, that the court is accurately informed of the facts and the presentation of testimony need be no greater than is necessary for the same purpose.” The court reiterated that a fair and objective parole procedure is essential for rehabilitating offenders.

  • People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376 (1971): Right to Counsel at Parole Revocation Hearings

    People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376 (1971)

    Due process under the New York State Constitution requires that a parolee be represented by counsel at parole revocation hearings, as the outcome of the hearing directly impacts the individual’s liberty.

    Summary

    Menechino, imprisoned for murder, had his parole revoked for technical violations: associating with ex-convicts and providing false information to his parole supervisor. He was not represented by counsel at the revocation hearing. The New York Court of Appeals held that parolees are constitutionally entitled to counsel at revocation hearings. The court reasoned that a parole revocation hearing is an accusatory proceeding where the parolee’s liberty is at stake, necessitating the assistance of counsel to ensure a fair determination of the facts. This right is grounded in due process, guaranteeing a meaningful opportunity to be heard.

    Facts

    In 1947, Menechino was convicted of second-degree murder and sentenced to 20 years to life. He was paroled in 1963 after serving 16 years.
    In December 1964, he was declared delinquent for violating parole conditions.
    In March 1965, he was taken into custody.
    In April 1965, a parole revocation hearing was held where he was charged with associating with individuals having a criminal record and giving false information to his parole supervisor.
    Menechino, without counsel, admitted to the charges.
    His parole was revoked, and he was barred from reconsideration for at least two years.

    Procedural History

    Menechino initiated an Article 78 proceeding challenging the denial of his right to counsel and other procedural safeguards at the revocation hearing; it was dismissed as untimely.
    He then filed a habeas corpus proceeding in Dutchess County, arguing deprivation of due process rights at the revocation hearing.
    Special Term dismissed the writ.
    Menechino appealed directly to the New York Court of Appeals on constitutional grounds.

    Issue(s)

    Whether a parolee is constitutionally entitled to the assistance of counsel at a parole revocation hearing under the New York State Constitution.

    Holding

    Yes, because a parole revocation hearing involves the right of an individual to continue at liberty or be imprisoned, which falls within the due process provision of the New York State Constitution.

    Court’s Reasoning

    The court found the principle in Mempa v. Rhay sufficiently broad to encompass parole revocation, stating that, “the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case * * * is apparent.”
    The court emphasized that a parole revocation hearing is an accusatory proceeding where the parolee’s liberty is at stake, requiring a factual determination regarding alleged misconduct.
    “When all the legal niceties are laid aside a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned. It involves a deprivation of liberty just as much as did the original criminal action and * * * falls within the due process provision of section 6 of article I of our State Constitution.”
    The court rejected the argument that parole is a mere privilege, asserting that once a state undertakes proceedings affecting liberty, it must do so consistently with constitutional privileges.
    The court highlighted the importance of counsel in ensuring a fair and accurate factual presentation, particularly in refuting ambiguous charges.
    The court found that the right to be heard would be “of little avail if it did not comprehend the right to be heard by counsel.”
    The court determined that Menechino’s failure to request counsel at the hearing did not constitute a waiver of his right to counsel because he was not advised of that right.
    The court stated that requiring obedience to the demands of due process and granting parolees a hearing at which they will be represented by counsel will further the purpose of the parole system, which is to rehabilitate convicted criminals, by creating a belief in a fair and objective parole procedure.