People ex rel. Shippens v. Smith

91 A.D.2d 870, 458 N.Y.S.2d 371, 1982 N.Y. App. Div. LEXIS 19793

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1982
• Status: Published

Opinion

— Judgment unanimously reversed and petition dismissed. Memorandum: In this habeas corpus proceeding relator alleges that because his parole revocation hearing was not conducted by a neutral and detached person (Morrissey v Brewer, 408 US 471), he is entitled to a new hearing or to be restored to parole status. The hearing was conducted by an associate counsel for the Division of Parole, who had been designated by the chairman of the Parole Board to act as a hearing officer pursuant to section 259-d of the Executive Law. We recently affirmed a judgment wherein the court dismissed a similar petition holding that it is proper for counsel for the Parole Board to act as a hearing officer since commissioners themselves may hold final revocation hearings (see People ex rel. Simpson v Smith, 89 AD2d 1065). Relying on our decision in People ex rel. Pyclik v Smith (81 AD2d 1016), Special Term found that actual prejudice need not be shown inasmuch as the proceeding created “the appearance of impropriety.” In that case, however, the hearing officer had previously been an Assistant Attorney-General representing the State in a proceeding involving the relator. No such conflict of interest, real or apparent, exists here. (Appeal from judgment of Supreme Court, Wyoming County, Mintz, J. — habeas corpus.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Schnepp, JJ.