Piersma v. Henderson

60 A.D.2d 1001, 401 N.Y.S.2d 666, 1978 N.Y. App. Div. LEXIS 10085

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 1978
• Status: Published

Opinion

Judgment unanimously reversed and petition granted to the extent of dismissing parole detainer warrant. Memorandum: Petitioner, an inmate at a State correctional facility, appeals from a judgment dismissing his application for a writ of habeas corpus, which we now convert to an article 78 proceeding. On May 1, 1947 petitioner was sentenced to an indeterminate term of 20 to 40 years upon his conviction of arson, first degree. On October 14, 1971 he was released on parole and, while still under parole supervision, he was arrested on March 26, 1974 and charged with sexual abuse, first degree. A parole detainer warrant was lodged against him on March 27, 1974. Upon his plea of guilty to sexual abuse, first degree, he was sentenced on February 13, 1975 to an indeterminate term of two to four years to run concurrently with the time remaining on his 1947 sentence. Petitioner has been incarcerated since his arrest in March, 1974. He was not afforded a parole revocation hearing until October 13, 1977. A delay of more than 41 months in granting petitioner his final parole revocation hearing is prejudicial and a denial of his constitutional rights (Morrissey v Brewer, 408 US 471). In such circumstances the parole detainer warrant must be dismissed with prejudice and upon the expiration of the sentence imposed on February 13, 1975 he will be entitled to be released to parole status (Matter of Smith v New York State Bd. of Parole, 60 AD2d 775). (Appeal from judgment of Cayuga Supreme Court—art 78.) Present—Marsh, P. J., Cardamone, Dillon, Hancock, Jr., and Witmer, JJ.