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ANDERSON v. NEW YORK STATE DIV. OF PAROLE

September 8, 1982

ODEBEE ANDERSON, Plaintiff,
v.
THE NEW YORK STATE DIVISION OF PAROLE, an entity created by and under the laws of the State of New York, EDWARD HAMMOCK, Chairperson, New York State Division of Parole, JEROME CUTLER, Parole Officer, New York State Division of Parole, MATTHEW MAZZAMURRO, Parole Officer, New York State Division of Parole, G. T. GIACOPELLO, Hearing Officer, New York State Division of Parole, PATRICK MULLEN, Hearing Officer, New York State Division of Parole, RICHARD A. FOWLER, Hearing Officer, New York State Division of Parole, JOSEPH VIOLA, Hearing Officer, New York State Division of Parole, ROBERT ABRAMS, Attorney General, State of New York, Defendants



The opinion of the court was delivered by: KNAPP

MEMORANDUM AND ORDER

 WHITMAN KNAPP, D.J.

 Plaintiff Odebee Anderson was conditionally released from confinement in the New York State Correctional System on October 13, 1978. *fn1" By spring the next year, he was living at the home of a Mrs. Grace Tucker. On July 1, 1979, he was arrested for violating the terms of his release. The gist of the alleged violation was that on June 22 he had assaulted Mrs. Tucker's 15-year-old son, William, with a knife; and that he failed to tell his parole officer that the police had questioned him concerning this incident. *fn2"

 Preliminary and final revocation hearings were held, and plaintiff's parole was revoked. His administrative appeal of the revocation was denied. At none of these proceedings was plaintiff represented by counsel.

 In July 1980, plaintiff -- for the first time represented by counsel -- petitioned the New York Supreme Court, Clinton County, for a writ of habeas corpus. By order dated October 11, 1980, that Court (Ford, J.) found that the failure to provide plaintiff with counsel at his revocation hearings had violated his due process rights. It accordingly annulled the determination revoking plaintiff's parole, and directed the Division of Parole promptly to conduct a de novo revocation hearing, at which plaintiff was to be provided with counsel. When no de novo hearing was held, the Court on December 8, 1980 ordered plaintiff's immediate release from confinement and directed reinstatement of his conditional release status. In so doing, the Court held that the evidence adduced at plaintiff's revocation hearing was insufficient to support the revocation ab initio, and that plaintiff's continued restraint was accordingly illegal. Plaintiff was at liberty when this action was commenced.

 It is plaintiff's claim that the failure to provide him with counsel at his revocation hearings, and the failure to accord him a prompt de novo hearing in compliance with the order of the Clinton County Supreme Court, violated his rights under both federal and state law, as -- on the evidence presented -- did actual revocation of his parole. He brings this civil action against the New York State Division of Parole; its Chairperson Edward Hammock; parole officer Jerome Cutler, who presented the charges against him at the preliminary revocation hearing; parole officer Matthew Mazzamurro who performed the same function at the final revocation hearing; parole hearing officers G. T. Giacopello, Patrick Mullen, Richard A. Fowler, and Joseph Viola, who presided over various portions of the revocation proceedings; and Robert Abrams, Attorney General of the State of New York.

 All defendants move to dismiss the Complaint. Matter outside the pleadings having been presented, we treat this as a motion for summary judgment. For reasons set forth below, we grant the motion as to defendants New York State Division of Parole and Robert Abrams. As to defendants Hammock, Giacopello, Mullen, Fowler, Viola, Cutler and Mazzamurro, the motion is granted as to the third, fourth and fifth claims of the Complaint, and otherwise denied.

 The Complaint

 The verified Complaint seeks declaratory relief as well as compensatory and punitive damages totaling $700,000. There are seven claims. The first deals with plaintiff's preliminary revocation hearing and concerns actions by the participants which allegedly deprived plaintiff of his right to counsel under the due process clauses of the New York State and United States Constitutions, and of correlative rights under procedural rules of the New York State Division of Parole. It contains specific allegations referable to defendants Cutler, Giacopello and Fowler. The second claim makes similar allegations as to plaintiff's final revocation hearing. The third, fourth and fifth claims concern the alleged failure of those involved in plaintiff's final revocation hearing and, apparently, his subsequent appeal, to conduct the proceedings and make their findings in accordance with the evidentiary standards set forth in New York State regulations governing revocation of parole. These claims -- the second through fifth -- make factual allegations referable to defendants Mazzamurro, Viola and Mullen. Insofar as the first five claims allege inadequacies in the standard forms of notice provided prior to plaintiff's preliminary and final hearings, and in the Division's failure to grant plaintiff's administrative appeal, they may also be seen as making specific allegations referable to the Division of Parole.

 The sixth and seventh claims concern the failure to comply with the Clinton County Supreme Court's October 11, 1980 order that plaintiff be afforded a prompt de novo revocation hearing with counsel. The sixth claim relates solely to the Division; the seventh to defendant Robert Abrams.

 As to defendant Abrams, the Complaint states that his failure, and the failure of his employees, to assure plaintiff an immediate parole revocation hearing following annulment of the initial revocation was arbitrary and capricious and in knowing and conscious violation of plaintiff's rights. The Complaint further states (at para. 11):

 
"DEFENDANT ROBERT ABRAMS . . . is responsible for assuring that the State of New York, its employees and agents, in their official capacities, carry out the laws of the State of New York, as interpreted by the Courts of the State of New York and of the United States of America. More particularly, the Attorney General of the State of New York is responsible for assuring that the orders and mandates of the courts of the State of New York, deriving from habeas corpus efforts, are faithfully, fully and expeditiously carried out. . ." (Emphasis supplied.)

 As to defendant Edward Hammock, the Complaint merely states (at para. 8):

 
"DEFENDANT EDWARD HAMMOCK is the Chairperson of the New York State Division of Parole. In his capacity as Chairperson of said Board he is responsible for assuring that the duties and functions of the New York State Division of Parole are carried out in conformity with the laws and Constitution of the State of New York and consistent with guarantees encompassed within the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution."

 Background

 The Hearings

 Prior to the preliminary revocation hearing, plaintiff received a standard form notice advising him, among other things, that he had "the right to appear at that hearing with counsel or to request the assistance of counsel at that hearing and to speak on [his] own behalf." (Plaintiff's Exhibit C-iii) Although he repeatedly stated throughout the revocation proceedings that he wished to be represented by counsel, at no time was counsel provided. Indeed, plaintiff was never specifically advised that he had a right to counsel appointed by the court. Instead, he was told he could have counsel if he wished, but that he had to secure it himself. Moreover, it was not until he received the standard form notice of the final revocation hearing -- scheduled for September 14, 1979 -- that plaintiff was given correct advice as to how to go about securing ...


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