People ex rel. Kellams v. Henderson

58 A.D.2d 1022, 397 N.Y.S.2d 48, 1977 N.Y. App. Div. LEXIS 13245

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1977
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: We agree with petitioner that habeas corpus was an appropriate proceeding to test whether petitioner had been denied his constitutional right to a prompt final parole revocation hearing (see People ex rel. Menachino v Warden, Green Haven State Prison, 27 NY2d 376, 379; People ex rel. Warren v Mancusi, 40 AD2d 279, 281). We find, however, no delay warranting petitioner’s immediate release. In 1971 petitioner was sentenced to 0-12 years for manslaughter, second degree. He was paroled on June 10, 1976 and on December 23, 1976 petitioner was incarcerated for parole violation as of September 17, 1976. Probable cause to to revoke parole was found at a preliminary hearing on January 3, 1977. The Parole Board alleges that it was prepared to hold a final hearing on February 15, 1977 but on January 26 petitioner requested a postponement until counsel was assigned him. On March 7, 1977 the court appointed counsel but petitioner declined the assignment and employed present counsel who petitioned for a writ of habeas corpus on March 10, 1977. The delay after March 10 has been occasioned by the pendency of this proceeding. Inasmuch as the delay before January 26 was not unreasonable (see Morrissey v Brewer, 408 US 471, 488, holding a delay of two months not unreasonable) and the delay thereafter resulted from petitioner’s request for postponement pending assignment of counsel and during the pendency of this proceeding, we find no denial of due process. (Appeal from judgment of Cayuga Supreme Court —article 78.) Present—Cardamone, J. P., Simons, Hancock, Denman and Witmer, JJ.