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SUPREME COURT OF NEW YORK, SPECIAL DIVISION, NEW YORK COUNTY 1968.NY.42801 <>; 293 N.Y.S.2d 741; 57 Misc. 2d 865 August 27, 1968 IN THE MATTER OF JOSEPH MENECHINO, PETITIONER,v.DIVISION OF PAROLE, NEW YORK CITY, ET AL., RESPONDENTS Joseph Menechino, petitioner in person. Louis J. Lefkowitz, Attorney-General (Samuel A. Hirshowitz and Hillel Hoffman of counsel), for respondent. Thomas C. Chimera, J. Author: Chimera

Thomas C. Chimera, J.

Author: Chimera

 In this "article 78" proceeding petitioner, pro se, seeks review of determinations made by the Board of Parole at "hearings" held in 1965 and 1967 wherein petitioner was successively remanded to prison as a parole violator and denied parole.

The important question raised is whether petitioner was deprived of constitutional right because of failure to afford him counsel during those "hearings" and particularly during the first of them wherein his parole was revoked. He had served 16 years of a sentence of 20 years to life following his plea of guilty of the crime of murder in the second degree and had been out on parole for a little more than 16 months.

This issue is too important to warrant hairsplitting over technical questions of form and forum. Those questions are not reached.

The present dialogue and decisional trend throughout the land seems to suggest that at any stage of any proceeding involving a person's liberty, an "accused" is entitled to a hearing as a matter of constitutional right; he must be afforded the same opportunity to defend himself and explain his actions as that afforded a defendant in a court action; that both the right to counsel and to meaningful advice with respect to such right are concomitants of such a hearing and perhaps the most important individuating notes of due process. (See, generally, Amer. Law Inst., Model Penal Code, as proposed Official Draft [1962], § 305.15; Sklar, Law and Practice in Probation and Parole Revocation Hearings, 55 J. Crim. L., C. & P. S. [1964] 175 et seq. Consider the polemics and the authorities cited under the headings Policy Considerations for Granting a Full Hearing [p. 196] and Necessity of a Hearing When "Factual Dispute" Exists [pp. 197-198].)

Respondent relies heavily on the recent denial of certiorari by the United States Supreme Court in Williams v. Dunbar (377 F. 2d 505 [C. A. 9th Cir., April 26, 1967], cert. den. 389, U.S. 866).

Williams had instituted a suit in the United States District Court for damages based on two sections of the Civil Rights Act (U. S. Code, tit. 42, §§ 1983, 1985). He asserted jurisdiction in the District Court under title 28 of the United States Code (§ 1343, subds. [3], [4]) and invoked jurisdiction in the United States Court of Appeals, 9th Circuit (under U. S. Code, tit. 28, §§ 1291, 1915).

That the Circuit Court in Williams determined that a parolee denying either the fact of the violation or the legal sufficiency of the act alleged to be a violation of his parole is not entitled to a hearing before a Judge, with all the concomitants of a non-jury criminal trial, cannot be ignored.

The applicable statute under consideration in Williams (Penal Code of California, § 3056) reads as follows: "Prisoners on parole shall remain in the legal custody of the department and shall be subject at any time to be taken back within the enclosure of the prison."

One need not speculate whether the peculiar language of this statute or the reasoning of the Circuit Court of Appeals or its conclusion (p. 506): "The district court correctly held that the appellant's claims for defamation, false imprisonment and fraud presented no federal question." was the basis for denial of certiorari in the United States Supreme Court. It is difficult, however, for me to believe that the august body responsible for those monumental steps forward -- (Powell v. Alabama, 287 U.S. 45; In Re Oliver, 333 U.S. 257; Gideon v. Wainright, 372 U.S. 335; In Re Gault, 387 U.S. 1; Mempa v. Rhay, 389 U.S. 128) -- would have approved of the rigid and restrictive thinking in Williams.

In our own State, the "battle lines" for change recently have been drawn in two diametrically opposed Appellate Division decisions.

In People ex rel. Combs v. La Vallee (29 A.D.2d 128) the Appellate Division for the Fourth Department held that the New York Constitution, at least, required the affording of counsel to one appearing before a "parole court" (see Correction Law, § 218, prior to recent amendment) after he had been declared a delinquent and in violation of parole.

A contrary decision was reached by the Appellate Division of the Third Department in its affirmance without opinion of Matter of Briguglio v. New York State Board of Parole (55 Misc. 2d 584, affd. without opn. 30 A.D.2d 639). In the former case, the court (p. 131) said, and I agree: "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, it is submitted, falls within the due process provision of section 6 of article I of our State Constitution." In the latter case, the court, employing the all too familiar arguments, distinguished between probation and parole and held, as so many past decisions here and abroad have held, that while the right to counsel and to advice on that right in situations involving probation is established, no such right is recognized where the situation involves revocation of parole.

It appears that of these two decisions, so far, only one, Combs, has found its way to our Court of Appeals. Regrettably, the controversy still remains unresolved. Our Court of Appeals (22 N.Y.2d 857 [July 1, 1968]) unanimously dismissed the appeal "upon the ground that the order appealed from does ...

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