People ex rel. Williamson v. Kuhlman

81 Misc. 2d 1038, 368 N.Y.S.2d 116, 1975 N.Y. Misc. LEXIS 2525

• Court: New York Supreme Court
• Decided: May 6, 1975
• Status: Published

Opinion

Benjamin Newberg, J.

Petitioner was declared delinquent on April 30, 1974 and at the present time is a resident at the Woodbourne Rehabilitation Center under the care and custody of the Drug Abuse Control Commission (D.A.C.C.). Petitioner was originally certified to D.A.C.C. for a period of 60 months on July 24, 1969.

It is conceded that petitioner, as an alleged aftercare violator, was not given a hearing before being violated from aftercare.

The issue raised by this proceeding presents a question as to whether the mandates in the ruling of Matter of Ball v Jones (43 AD2d 281, mod 36 NY2d 339) are retroactive.

On January 17, 1974 in Matter of Ball v Jones, the Supreme Court in the Fourth Department decided a hearing must be had before an addict can be violated and returned from aftercare to a resident status. This case was appealed to the Appellate Division and finally to the New York State Court of Appeals, which affirmed in modified form. The Court of Appeals affirmed as to the necessity of notice of charges and a hearing before a violation can be validly effective.

In view of the cases above referred to, the constitutional right to a hearing was in effect since January 17, 1974 and prior to the date that the petitioner was violated herein. In view of the above, the issue here as to any retroactive application is academic.

Writ is allowed.