People ex rel. Savarese v. New York State Board of Parole

New York Supreme Court

People ex rel. Savarese v. New York State Board of Parole

106 Misc. 2d 916, 433 N.Y.S.2d 408, 1980 N.Y. Misc. LEXIS 2804

New York Supreme Court·Decided November 20, 1980·Published

Opinion

OPINION OF THE COURT

William C. Brennan, J.

This is a motion brought on by an order to show cause seeking reargument of a decision of this court dated October 3, 1980 dismissing a writ of habeas corpus, sought on the ground that the petitioner had not been afforded his preliminary hearing within 15 days as required by section 259-i (subd 3, par [c], cl [i]) of the Executive Law.

The motion to reargue is granted. This court has already determined that the Attorney-General has not given a sufficient explanation for failure of the Parole Board to comply with the statute. Upon examination of People ex rel. Levy v Dalsheim (48 NY2d 1019) and People ex rel. Johnson v New York StateBd. of Parole (71 AD2d 595) the court finds that the provisions of section 259-i of the Executive Law are to be strictly construed. Although the above two cases deal with failure to grant a final parole hearing within 90 days it appears clear that the same construction should be applied where there is a failure to comply with the statute as far as a preliminary hearing is concerned. The only appropriate remedy is vacatur of the warrant and reinstatement of parole.

[917] Accordingly, the parole warrant is vacated and the petitioner is restored to parole.

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OPINION OF THE COURT

William C. Brennan, J.

This is a motion brought on by an order to show cause seeking reargument of a decision of this court dated October 3, 1980 dismissing a writ of habeas corpus, sought on the ground that the petitioner had not been afforded his preliminary hearing within 15 days as required by section 259-i (subd 3, par [c], cl [i]) of the Executive Law.

The motion to reargue is granted. This court has already determined that the Attorney-General has not given a sufficient explanation for failure of the Parole Board to comply with the statute. Upon examination of People ex rel. Levy v Dalsheim (48 NY2d 1019) and People ex rel. Johnson v New York StateBd. of Parole (71 AD2d 595) the court finds that the provisions of section 259-i of the Executive Law are to be strictly construed. Although the above two cases deal with failure to grant a final parole hearing within 90 days it appears clear that the same construction should be applied where there is a failure to comply with the statute as far as a preliminary hearing is concerned. The only appropriate remedy is vacatur of the warrant and reinstatement of parole.

[917] Accordingly, the parole warrant is vacated and the petitioner is restored to parole.

People ex rel. Savarese v. New York State Board of Parole, 106 Misc. 2d 916, 433 N.Y.S.2d 408, 1980 N.Y. Misc. LEXIS 2804 (N.Y. Super. Ct. 1980).

Pincite

106 Misc. 2d 916 (People ex rel. Savarese v. New York State Board of Parole) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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