Carter v. New York State Department of Parole

Appellate Division of the Supreme Court of New York

Carter v. New York State Department of Parole

58 A.D.2d 975, 397 N.Y.S.2d 31, 1977 N.Y. App. Div. LEXIS 13183

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 12, 1977

StatusPublished

Cited by3 cases

This text of 58 A.D.2d 975 (Carter v. New York State Department of Parole) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carter v. New York State Department of Parole, 58 A.D.2d 975, 397 N.Y.S.2d 31, 1977 N.Y. App. Div. LEXIS 13183 (N.Y. Ct. App. 1977).

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Opinion

Judgment unanimously affirmed.

Memorandum: Petitioner was sentenced on March 27, 1972 in Westchester County Court to an indeterminate term with a maximum of eight years upon his conviction of robbery in the second degree. He was paroled on August 15, 1975 and on October 7, 1975 he was declared delinquent as of August 19, 1975. He was arrested on December 9, 1975 for a burglary committed while he was on parole, and a parole violation warrant, which had been issued in September, 1975, was lodged against him in the Westchester County Jail. The parole violation was not premised upon the subsequent criminal charge but related only to petitioner’s failure to report to his parole officer; failure to procure the permission of the parole officer before moving from his approved residence; and failure to reply to a message from the parole officer. He waived his right to a preliminary parole revocation hearing. On February 25, 1976 petitioner was sentenced to a term of 2 to 4 years upon his plea of guilty to burglary in the third degree, such sentence to be served concurrently with the 1972 sentence. Petitioner was never afforded a final parole revocation hearing. He brought this proceeding seeking a writ of habeas corpus to obtain his release from custody. Special Term treated the. petition as an article 78 proceeding (CPLR 103, subd [c]) and granted the petition to the extent of dismissing the parole violation warrant, for failure of the board to afford petitioner a final parole revocation hearing. The court, however, properly remanded petitioner to the Auburn Correctional Facility for further detention on his new sentence of two to four years imposed on February 25, 1976 (People ex rel. England v New York State Bd. of Parole, 55 AD2d 1013). Notwithstanding the September 3, 1976 memorandum to the petitioner from the head clerk’s office at the correctional facility which incorrectly states that petitioner is being detained on his original sentence, his incarceration is now limited to the new sentence. His eligibility for continued parole on his original sentence is moot (People ex rel. England v New York State Bd. of Parole, supra). (Appeal from judgment of Cayuga Supreme Court—article 78.) Present—Moule, J. P., Cardamone, Dillon, Goldman and Witmer, JJ.

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Judgment unanimously affirmed.

Memorandum: Petitioner was sentenced on March 27, 1972 in Westchester County Court to an indeterminate term with a maximum of eight years upon his conviction of robbery in the second degree. He was paroled on August 15, 1975 and on October 7, 1975 he was declared delinquent as of August 19, 1975. He was arrested on December 9, 1975 for a burglary committed while he was on parole, and a parole violation warrant, which had been issued in September, 1975, was lodged against him in the Westchester County Jail. The parole violation was not premised upon the subsequent criminal charge but related only to petitioner’s failure to report to his parole officer; failure to procure the permission of the parole officer before moving from his approved residence; and failure to reply to a message from the parole officer. He waived his right to a preliminary parole revocation hearing. On February 25, 1976 petitioner was sentenced to a term of 2 to 4 years upon his plea of guilty to burglary in the third degree, such sentence to be served concurrently with the 1972 sentence. Petitioner was never afforded a final parole revocation hearing. He brought this proceeding seeking a writ of habeas corpus to obtain his release from custody. Special Term treated the. petition as an article 78 proceeding (CPLR 103, subd [c]) and granted the petition to the extent of dismissing the parole violation warrant, for failure of the board to afford petitioner a final parole revocation hearing. The court, however, properly remanded petitioner to the Auburn Correctional Facility for further detention on his new sentence of two to four years imposed on February 25, 1976 (People ex rel. England v New York State Bd. of Parole, 55 AD2d 1013). Notwithstanding the September 3, 1976 memorandum to the petitioner from the head clerk’s office at the correctional facility which incorrectly states that petitioner is being detained on his original sentence, his incarceration is now limited to the new sentence. His eligibility for continued parole on his original sentence is moot (People ex rel. England v New York State Bd. of Parole, supra). (Appeal from judgment of Cayuga Supreme Court—article 78.) Present—Moule, J. P., Cardamone, Dillon, Goldman and Witmer, JJ.

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Bluebook (online)

58 A.D.2d 975, 397 N.Y.S.2d 31, 1977 N.Y. App. Div. LEXIS 13183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-new-york-state-department-of-parole-nyappdiv-1977.

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