People ex rel. Lathan v. Warden, Sing Sing Correctional Facility

105 A.D.2d 861, 482 N.Y.S.2d 53, 1984 N.Y. App. Div. LEXIS 20996

Opinion

Appeal from a judgment of the Supreme Court, Westchester County (Rosato, J.) entered August 31,1983, which dismissed the proceeding to restore petitioner to parole.

Judgment affirmed, without costs or disbursements.

Petitioner was not denied a timely preliminary parole revocation hearing as a result of the failure of the New York parole authorities to have him returned to New York immediately following the execution of a parole violation warrant in California because petitioner was beyond the convenience and practical control of the parole authorities (People ex rel. Gonzales v Dalsheim, 52 NY2d 9). The record established that the California authorities refused to conduct a preliminary parole revocation hearing. Furthermore, petitioner could not be returned to New York without formal extradition proceedings because California does not honor an advance waiver of extradition form which has been signed in New York as a condition of receiving parole in New York (Matter of Klock, 133 Cal App 3d 726). To the extent that this court in People ex rel. Miller v Walters (91 AD2d 647, revd on other grounds 60 NY2d 899) suggests the contrary, it is limited to its facts as presented in the record on appeal. Mollen, P. J., Titone, Thompson and Weinstein, JJ., concur.