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SUPREME COURT OF NEW YORK, DUTCHESS COUNTY 1968.NY.43937 <>; 295 N.Y.S.2d 565; 58 Misc. 2d 474 December 13, 1968 THE PEOPLE OF THE STATE OF NEW YORK EX REL. JAMES JOHNSON ET AL., RELATORS,v.HAROLD W. FOLLETTE, AS WARDEN OF GREEN HAVEN PRISON, RESPONDENT Milton F. Morey, Herbert Cohen, Ronald R. Levine, Milton S. Herman, Rudolph Russo, Vincent Di Gennaro and David Effron for relators. Louis J. Lefkowitz, Attorney-General (Vincent A. Marsicano of counsel), for respondent. Clare J. Hoyt, J. Author: Hoyt

Clare J. Hoyt, J.

Author: Hoyt

 The above 19 relators, all inmates of Green Haven Prison, and returned there by reason of parole violations, seek their release in these habeas corpus proceedings because they were not afforded counsel at the parole revocation hearings before the Parole Board. Since this common question is raised in all these proceedings, this single opinion will determine all of these proceedings.

Petitioners rely on a Fourth Department decision, People ex rel. Combs v. La Vallee (29 A.D.2d 128, app. dsmd. 22 N.Y.2d 857) which granted relief in a habeas corpus proceeding by directing the Board of Parole to hold a new revocation hearing at which the relator was to be represented by counsel. The question has not yet been determined by the Court of Appeals, although the court is mindful of Chief Judge Fuld's statement in a dissent in People v. Simons (22 N.Y.2d 533, 545): "I am inclined to the view that a parolee is also entitled to be represented by counsel in a parole revocation proceeding which is truly independent of, and unrelated to, a criminal prosecution brought against the parolee. (Cf. Mempa v. Rhay, 389 U.S. 128.) That question, however, need not here be considered or passed upon."

Combs (supra) was followed by a case decided in New York County (Matter of Menechino v. Division of Parole, 57 Misc. 2d 865) but three cases before Special Term, Supreme Court, Westchester County held parties charged with parole violations not entitled to counsel (People ex rel. Trapense v. Deegan, not reported; People ex rel. Jones v. Deegan, N. Y. L. J., Oct. 24, 1968, p. 19, col. 6; People ex rel. Smith v. Deegan, N. Y. L. J., Oct. 10, 1968, p. 18, col. 6). Dicta in a Third Department case, Schwartzberg v. Oswald (8 A.D.2d 570), decided before Combs, is in opposition to the Combs holding.

Matter of Briguglio v. New York State Bd. of Parole (55 Misc. 2d 584, affd. without opn. 30 A.D.2d 639) is relied on by respondent and was cited in the Special Term, Supreme Court, Westchester County cases (supra) as authority for the denial of the right to counsel. It must be noted that Briguglio (supra) denied the right to counsel to a prisoner seeking release on parole, not a parolee charged with a violation of parole. The denial of counsel to one seeking release on parole is not controlling on the question of the right to counsel of one charged with a parole violation.

The issue presented is a narrow one, namely, whether either the United States or New York Constitutions require that relators, or some of them, be afforded counsel at parole revocation proceedings. The policy considerations that bear on the question are not open because the New York Legislature has specifically denied an alleged parole violator the right to appear before the board on a revocation hearing "through counsel or others" (Correction Law, § 218). If this determination is to be overturned, a clear constitutional right to the relief sought must be shown.

In New York, the State Constitution authorizes the Legislature to provide "for systems of probation and parole of persons convicted of crime" (art. XVII, § 5). Article 8 of the Correction Law (§§ 210-225) establishes the parole system. The Board of Parole is charged with the duty of determining which prisoners should be released on parole and under what conditions (§ 210). The same section invests the board with the duty of continuing supervision over parolees and of determining whether the conditions of parole imposed are being violated. The conditions of release on parole may be tailored to fit individual cases (§ 215) but certain standard conditions are prescribed by regulation in all cases (9 NYCRR 155.11-155.16). Before being granted his conditional liberty, a parolee must sign a release agreement that requires him to make regular reports to his parole officer, obey instructions, maintain employment, conduct himself as a good citizen and abstain from wrongdoing and evil associations (9 NYCRR 155.15). If the parole officer has reasonable cause to believe that the parolee "has lapsed, or is probably about to lapse, into criminal ways or company, or has violated the conditions of his parole in an important respect" he shall report the same to a member of the Parole Board who may then issue a warrant for the parolee's arrest (§ 216). Upon the same information the board may declare the parolee delinquent and upon the prisoner's return to the custody of the Department of Correction, the board "shall, as soon as practicable, give such parole violator an opportunity to appear personally, but not through counsel or others, before three members of such board of parole and explain the charges made against him" (§ 218).

From the date he is declared delinquent until he is returned to the custody of the Department of Correction, the running of the parolee's sentence is interrupted and he receives no credit for that time (People ex rel. Dote v. Martin, 294 N. Y. 330). However, time spent on parole prior to the declaration of delinquency is credited to the prisoner's maximum sentence (People ex rel. Ingenito v. Warden of Auburn Prison, 267 App. Div. 295, affd. 293 N. Y. 803). After the revocation hearing, the board must determine what portion of the remaining balance of the prisoner's maximum sentence must be served in prison before he may again be paroled (§ 218). In addition to the loss of conditional liberty that a revocation of parole brings about, the prisoner also loses all "good time" earned prior to his release on parole by virtue of the parole violation (Matter of Milford v. New York State Dept. of Correction, 19 A.D.2d 920).

There is a firm line of authority that the Parole Board's determination on the question of revocation is not subject to judicial review (Matter of Hines v. State Bd. of Parole, 293 N. Y. 254, 257; People ex rel. Natoli v. Lewis, 287 N. Y. 478, 481; People ex rel. Di Lorenzo v. Fay, 13 A.D.2d 1034; Matter of Mummiami v. New York State Bd. of Parole, 5 A.D.2d 923, cert. den. 362 U.S. 953; People ex rel. Spinney v. Fay, 23 A.D.2d 701). But whatever the board's determination may be on the merits, it must be arrived at according to law (Matter of Hines v. State Bd. of Parole, supra, p. 257). Thus the manner in which the board reaches its determination must meet the standard of procedural due process. Indeed, if there is absolutely no factual basis for the violation charged, one court has held that the determination made, not just the procedure employed, may be the subject of judicial review (People ex rel. Marvin v. McDonnell, 280 App. Div. 367; but, see, People ex rel. Di Lorenzo v. Fay, supra).

Parole violations fall into three main categories -- new arrests, technical violations and absconding (1967 Facts and Figures, Division of Parole, p. 24). The first category encompasses arrests of a parolee for a new offense. The decision to return the parolee is held in abeyance until the charge is disposed of as is the decision in the case of absconders until they become available (Thirty-Seventh Annual Report of Division of Parole, 1967, pp. 155, 157; N. Y. Legis. Doc., 1967, No. 100). Technical violations arise when the conditions of parole are violated in some respect other than by a new arrest or absconding (1967 Report, p. 24). In these cases, the decision to return the parolee or to restore him to parole is immediately made (Thirty-Seventh Annual Report, p. 157).

The parole violation procedure is set in motion by the filing of a written violation report by a parole officer that contains allegations "proven and supported with the same thoroughness which is used in obtaining evidence for legal action" (1967 Report, p. 24). Before the report is submitted, the parolee's statement is taken and included (id.). The report is then submitted to a member of the board who determines whether a return or detainer warrant should issue (Thirty-seventh Annual Report, pp. 155-157) and upon the issuance of the warrant the parolee is declared delinquent. Revocation hearings before members of the board are determined on the basis of the violation report (1967 Report, p. 24) and an appearance by the parolee (9 NYCRR 155.19). Upon the information supplied, the board may make its determination or order a further investigation and report (1967 Report, p. 25).

The factors considered in reviewing a technical violation are all set forth in the Thirty-seventh Annual Report at pages 157-158: "In reviewing the case of a parole violator, consideration is given to the quantitative and qualitative aspects of the casework of the Parole Officer Questions are raised as to the type of treatment attempted, whether it has been effective or whether the Parole Officer has reported problems without attempting a solution. An attempt is made to determine whether or not the violation indicates a failure of the parolee or of the parole agency; whether there are methods of treatment or other resources which can still be employed in the hope of effecting an adjustment. For example, a review of the case may disclose that the parolee's delinquent trends are the result of his continued residence in an undesirable area where he is exposed to temptations with which he should not be obliged to contend. The Parole Officer may have regularly visited the case but failed to take cognizance of the effect of the community situation on the parolee's behavior and had taken no positive steps to ameliorate the situation.

"The parolee's adjustment to parole supervision is another factor that is carefully weighed. Due consideration is given to the parolee's attitude toward his Parole Officer and toward parole supervision; whether he has been cooperative or antagonistic; whether he realizes his need for casework treatment and accepts it; whether he has conformed in a generally satisfactory manner with parole regulations; and whether there is evidence that the parolee has made a reasonable adjustment within the limits of his mental and emotional capacity.

"The element of community risk is always a major factor in such evaluation. Does such a risk exist? If so, what is the nature of the risk to property or to persons? Has a determination that a risk does exist been made on an objective basis? Do the actual facts of the case and the proportions of the criminal history present the parolee as an uncontrollable danger in the community? Many parolees who violate the conditions of their parole do not present a serious risk to the community. They are social risks rather than ...

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