People ex rel. Wallace v. State

70 A.D.2d 781, 417 N.Y.S.2d 531, 1979 N.Y. App. Div. LEXIS 12288

Opinions

— Judgment reversed and writ dismissed. Memorandum: County Court sustained relator’s writ of habeas corpus and ordered him released after finding that the evidence before the Parole Board in this final revocation hearing was insufficient to support the board’s determination that relator had violated the terms and conditions of his parole by possessing a shotgun and a razor. We previously reversed a similar decision made by County Court after the preliminary hearing (see People ex rel. Wallace v State of New York, 67 AD2d 1093). Before parole may be revoked, the board is required to find after a final hearing that relator violated the terms and conditions of parole by a preponderance of the evidence (Executive Law, § 259-i, subd 3, par [f], cl [viii]). The hearing officer need not follow the strict rules of evidence and any evidence offered may be accepted but there must be a residuum of legal evidence to support the findings (Matter of Carroll v Knickerbocker Ice Co., 218 NY 435, 440; Matter of Ayala v Toia, 59 AD2d 739). On August 18, 1978 relator was involved in a fight with one Joseph Dees outside a bar in Rochester. Police later found him, badly wounded, sitting in the passenger seat of a car parked in a shopping center plaza some miles away. One of the police officers found a razor in the car in the vicinity of the passenger seat, and the police also found a shotgun under the car near the passenger’s seat. A quantity of shotgun ammunition, a shoulder holster and shell casing were also found in the car. Some of this evidence was hearsay because only one police officer testified at the revocation hearing and he did not observe all the items. The officer testified, however, that during his investigation the other occupants of the car told him that the shotgun belonged to the relator. Relator testified and admitted that he possessed the gun but contended that he had taken it away from Dees in the fight. His witnesses testified they saw relator with the shotgun after the fight but their testimony was intended to confirm that Dees was the aggressor. Dees was subpoenaed to testify but did not appear and the hearing officer adjourned the hearing to secure his presence. On the adjourned date Dees was once again under subpoena. In addition, the police had been unable to execute an outstanding warrant for his arrest charging him with parole violation. The hearing officer waived his presence and received the transcript of Dees’ testimony from the preliminary examination as the statute permitted (Executive Law, § 259-i, subd 3, par [f], cl [v]; cf. CPL 670.10, subd 1). At the preliminary hearing Dees had testified that relator initiated the fight, that at the time relator had the shotgun under his coat in a shoulder holster and the razor on his person. During the fight, Dees said, relator shot him and cut him with the rázor. The record of the final revocation hearing thus contains competent evidence sufficient to support the finding that relator violated his parole by possessing a shotgun and a razor, and County Court erred in sustaining the writ. In view of our disposition, it is unnecessary to consider the other points raised in the briefs.