(dissenting). I cannot accept the view of the majority that the standards of due process prescribed in Morrissey v. Brewer (408 IT. S. 471) do not entitle the petitioner to a prompt parole revocation hearing. That a parolee cannot relitigate issues determined against him m conviction of another crime, as stated by the court in Morrissey, does not justify the conclusion that no revocation hearing whatsoever should be afforded in petitioner’s factual situation. To require that a revocation hearing be held within a reasonable time after the parolee is taken into custody, as mandated by Morrissey . in the case of all parolees, is not inconsistent with the language of former section 218 of the Correction Law, that the hearing *385should .be held “ as soon as practicable.” As held in Morrissey (p. 481) due process applies in general to all parole revocations. A delay of such revocation hearing until the parolee is discharged from imprisonment on the sentence he is serving in another jurisdiction does not, in my opinion, meet the minimal due process guarantees established by Morrissey. (Matter of McLucas v. Oswald, 40 A D 2d 311, opp. dsmd. 32 N Y 2d 761.) The invidious distinction made by the majority in which a revocation hearing is conducted as soon as possible for those parolees held in or out of State whenever any basis for incarceration lapses, or when they can “ convincingly demonstrate ” that mitigating evidence pointing to the conclusion that parole should not be revoked would be lost while serving the new sentence, operates as an unconstitutional discrimination and lacks fundamental fairness.
In Gagnon v. ScarpelU (411 U. S. 778), a case decided after Morrissey, the Supreme Court first determined that due process mandates preliminary and final revocation hearings for a probationer, under the same conditions as specified in Morrissey in the case of a parolee. The court then dealt with the question as to whether an indigent probationer or parolee has a due process right to be represented by appointed counsel at a revocation hearing. It recognized that ‘ ‘ in most cases, the probationer or parolee has been convicted of committing another crime or has admitted the charges against him.” (p. 787.) It is also significant that the factual situation in Gagnon involved a probationer who was arrested for committing burglary. His probation was revoked on September 1, 1965, prior to the Morrissey holding, as is true in the instant case. The Supreme Court held in Gagnon that because the respondent was not afforded a preliminary hearing or a final hearing (also true here), the revocation of his probation did not meet the due process standards prescribed in Morrissey.
As for the burden imposed on the State of conducting numerous hearings, often at a great distance, in answer to .this same argument made in Gagnon, the Supreme Court noted in a footnote that “ some amount of disruption inevitably attends any new constitutional ruling.” The court was confident, however, that modification of the Interstate Compact would remove the more serious hurdles to compliance with Morrissey (p. 782, n. 5). Paragraph (e) of subdivision 1 of section 224-a of the Correction Law provides that the hearing to which a parolee may be entitled by the laws of the sending State ‘ ‘ may be had before the appropriate judicial and administrative officers of *386the receiving state.” Although the United States is not a party to the Interstate Compact for the supervision of parolees and probationers (Correction Law, §§ 224 and 224-a), an examination of the record herein reveals that it is possible for petitioner to be transferred to the Federal House of Detention in New York City where such revocation .hearing can be conducted by the New York Board of Parole.
For these reasons, I dissent and vote to affirm.
Staley, Jr., J. P., Greenblott and Main, JJ., concur with Kane, J.; Sweeney, J., dissents and votes to affirm in an opinion.
Judgment reversed, on the law and the facts, and petition dismissed, without costs.