People ex rel. Calloway v. Skinner

Henry, J.

In this joint appeal by alleged parole violators, they claim that denial of their right to counsel at a preliminary hearing to determine whether there was probable cause to hold them for a parole revocation hearing violated due process.

In the month of June, 1972, warrants were issued by the Board of Parole pursuant to sections 216 to 218. of the Correction Law. The warrants recited that there was reasonable cause to believe that the appellants had violated their parole and directed that they be retaken and -placed in detention to await action of the Board of Parole. .

There is no provision in the Correction Law for the holding of a preliminary hearing to determine whether probable cause or reasonable grounds 'exist to believe that a parolee has violated his parole conditions.

On June 29, 1972 after the warrants had been executed the United 'States Supreme Court decided in Morrissey v. Brewer (408 U. S. 471) that after arrest of an alleged parole violator a ■ preliminary hearing should be held, before someone -other than the parole officer who reports the violations, to determine whether there is probable' cause or reasonable grounds to believe that the arrested pardeé has committed acts which would constitute a violation of parole conditions. At such hearings the parolee may appear and speak in his own behalf. The court in its opinion does not provide that the parolee shall have assistance of counsel but says (p. 489) “ we do not reach or decide the question of whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.”

Relators petitioned for habeas corpus relief alleging that Morrissey requires that they be given an immediate hearing. The matter was -heard at Special Term on July 27, 1972 and an order entered thereon required that the parole violation warrants be vacated and petitioners be released from custody unless prior to August 8,1972 the Parole Board conduct a preliminary hearing to determine whether there is probable cause to believe that petitioners had violated the conditions of their parole. The -order required compliance with all of the Morrissey provisions at the preliminary hearings. It required that petitioners ’ attorney be given -advance written notice of time, place and purpose of the preliminary hearing and a statement of the violations but denied petitioners ’ requests for counsel at the hearings. The hearings were held on August 4 and the hearing-officer by written decision in each case found that there was probable cause to hold petitioners. Special Term thereafter denied the relief sought and dismissed the petitions. In a single notice of appeal both petitioners appealed from the order. They claim that denial of the right to counsel at the preliminary hearing violated due process.

There is no constitutional or statutory provision entitling an alleged parole violator to assistance of counsel at a preliminary hearing. Morrissey does not require it and the holding in People ex rel. Menechino v. Warden (27 N Y 2d 376) should not be extended to entitle an alleged parole violator to the assistance of counsel at such a hearing.

In Menechino, the court in holding that a parolee is entitled to be represented by a lawyer at a parole revocation hearing before the Board of Parole said (p. 383): “ participation by counsel need be no greater than is required to assure * * *

that the board is accurately informed of the facts before it acts.” Participation of counsel in a preliminary hearing would serve no such purpose. Menechino is, therefore, not authority for participation of parolees’ attorney at -the preliminary hearings in the case at bar.

People ex rel. Combs v. La Vallee (29 A D 2d 128) is not authority for . giving an alleged parole violator assistance of counsel at such a hearing. Our holding in that case, allowing the relator to have assistance -of counsel in his hearing before the Board of Parole, was based on the provision of section- 6 of article I of the New York Constitution which guarantees the right to counsel ‘1 in .any trial in any court ’ ’ and -the then provision of section 218 of the Correction Law, which mandated the Board of Parole to “ hold a parole court ”. In the case at bar there was no proceeding before a parole court or any court but the hearing was before a designated parole officer to determine the limited issue of whether reasonable cause existed to require a hearing before the Board of Parole.

A parole revocation hearing is in the nature of an adminis- ■ trative proceeding (People ex rel. Maggio v. Casscles, 28 N Y 2d 415, 418). It is not to be equated to a criminal prosecution in any sense. It is a narrow inquiry (Morrissey v. Brewer, 408 U. S. 471, 489, supra). A person who has been denied assistance" of counsel at the preliminary stages of an administrative proceeding is not denied due process of law if he has assistance of counsel in subsequent proceedings resulting in the final administra- • tive order. (Low Wah Suey v. Backus, 225 U. S. 460, 470; Opp Cotton Mills v. Administrator, 312 U. S. 126,152-153; Chin Shee v. White, 273 F. 801; Sire v. Berkshire, 185 F. 967; Administrative Hearings-Aid of Counsel, Ann. 33 ALR 3d 229, 244.)

We conclude that denial of the assistance of counsel at the preliminary hearings was not violative of appellants’ right to due process. We find no merit in the other points raised by appellants.

The judgments should be affirmed.