People ex rel. Rivera v. New York State Division of Parole

83 A.D.2d 918, 442 N.Y.S.2d 511, 1981 N.Y. App. Div. LEXIS 15347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 3, 1981
• Status: Published

Opinions

Order, Supreme Court, Bronx County (Hecht, J.), entered April 23, 1981, sustaining petitioner’s writ of habeas corpus to extent of vacating respondents’ finding of a parole violation and directing that petitioner be granted a new final parole revocation hearing; reversed, on the law, to extent appealed from and writ granted, without costs. Petitioner, a parolee charged with assorted violations of his parole status, was produced for his final revocation hearing on the 82nd day after the preliminary hearing in which probable cause was found. Appearing without counsel, petitioner testified that he had never received either a notice of the hearing or a parole violation report. The record establishes that appropriate notice was mailed to him at Rikers Island some five days before the scheduled hearing. The issue raised by petitioner’s denial of receipt was not resolved. In response to questions, petitioner waived his right to be represented by an attorney, agreed to proceed with the hearing, and acknowledged guilt of several parole violations. Respondents thereafter revoked petitioner’s parole. Section 259-i (subd 3, par [f], cl [i]) of the Executive Law provides in pertinent part, and with exceptions not here relevant, that: “Revocation hearings shall be scheduled to be held within ninety days of the probable cause determination.” Section 259-i (subd 3, par [f], cl [iii]) of the Executive Law provides in pertinent part that the alleged violator: “shall be given written notice of the date, place and time of the hearing * * * at least fourteen days prior to the scheduled date.” Assuming that petitioner had received the notice mailed to him some five days prior to the hearing, a fact not clearly established in the record, it is clear that the notice was not timely. It is equally clear that the date on which such notice was mailed was incompatible with the holding of the revocation hearing within 90 days of the probable cause determination after the mandated 14-day notice. At the time petitioner waived his rights, he was not informed that respondents could not conduct the revocation hearing within the time prescribed by law. That circumstance by itself renders the waiver wholly ineffective. Accordingly, we need not consider whether or not the uncounseled waiver would have been otherwise legally effective, but we note that in similar circumstances this court implicitly denied legal effect to such a waiver. (See People ex rel. Johnson v New York State Bd. of Parole, 71 AD2d 595.) As also noted in Johnson (at p 596), “the appropriate remedy to rectify the statutory violation is vacatur of the parole revocation warrant and reinstatement of petitioner to parole.” (See, also, People ex rel. Levy v Dalsheim, 48 NY2d 1019.) Concur — Bims, Sandler, Ross and Fein, JJ.