People ex rel. Coleman v. Smith

56 A.D.2d 734, 392 N.Y.S.2d 750, 1977 N.Y. App. Div. LEXIS 10910

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1977
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: In this habeas corpus proceeding relator contends that the failure of the Board of Parole to afford him counsel at his final parole revocation hearing was a denial of due process and that the board’s order directing that he be held 18 months constitutes cruel and unusual punishment. The record amply demonstrates that relator was given a full opportunity to have an attorney represent him at the hearing; was adequately informed of his right to have witnesses and the parole officer present; and that he knowingly waived these rights. Relator’s argument that he was not afforded due process in accordance with the requirements of Morrisey v Brewer (408 US 471) is without merit (People ex rel. Clanton v Smith, 51 AD2d 873; People ex rel. Lawrence v Smith, 50 AD2d 1073). It further appears that the direction that he be held for 18 months is proper. The board found three separate violations of parole, the most serious of which was that he "struck Carie Miles * * * about the head with a two to three foot wooden club causing severe head wounds.” The other violations related to a failure to appear in court and a failure to notify his parole officer of an arrest. In these circumstances, the direction by the board that relator he held for 18 months is not excessive. (Appeal from judgment of Wyoming County Court —habeas corpus.) Present—Marsh, P. J., Simons, Dillon, Goldman and Witmer, JJ.