People ex rel. Gonzales v. Dalsheim

Appeal from a judgment of the Supreme Court at Special Term, entered January 2, 1980 in Clinton County, which dismissed a petition for a writ of habeas corpus. As an inmate at Clinton Correctional Facility, the relator in this proceeding demands his immediate release on parole because his parole revocation hearings were allegedly not timely held, and the basic underlying facts are as follows. Relator was sentenced in New York in December of 1973 to an indeterminate term on imprisonment of zero to eight years upon his conviction for assault in the first degree, and he was later paroled from New York to New Jersey on December 23, 1976, after the latter State had issued a parole violation warrant against him. His New Jersey parole was then revoked, and he remained in a New Jersey youth correctional facility until he was paroled in April of 1977. Thereafter, the New Jersey Parole Board assumed the duties of monitoring and supervising relator’s New York parole until May of 1978 when relator was arrested by New Jersey authorities and taken into custody on various charges. As a result, relator was convicted of statutory rape, desertion and nonsupport and sentenced to State prison, and with these circumstances prevailing on December 15, 1978, a New York parole violation warrant was executed against him. Subsequently, when his New Jersey imprisonment ended on March 1, 1979, he was transferred forthwith to New York and a preliminary revocation hearing on his parole was held within 15 days thereafter on March 16, 1979. A finding that there was probable cause to believe that he had violated his parole resulted, and consequently a final revocation hearing was held on May 28, 1979, after which relator’s parole was revoked because of his rape conviction. The instant writ of habeas corpus challenging the revocation of his parole was thereupon filed by relator on August 30, 1979, and the petition was transferred from Westchester County Supreme Court to Clinton County Supreme Court. Concluding that the revocation hearings were timely, Special Term then proceeded to dismiss the petition, and the present appeal has now ensued. We hold that the judgment of Special Term should be affirmed. Although section 259-i (subd 3, par [c], cl [i]) of the Executive Law requires that a preliminary revocation hearing must be conducted within 15 days of the execution of a parole violation warrant and section 259-i (subd 3, par [f], cl [i]) of the Executive Law requires that a final revocation hearing must be conducted within 90 days of the preliminary hearing or a waiver thereof by the parolee, it is well settled that a parolee may invoke his right to prompt hearings only when he is "subject to the convenience and practical control of the Parole Board” (People ex rel. Walsh v Vincent, 40 NY2d 1049, 1050; People ex rel. Spinks v Dillon, 68 AD2d 368). Likewise, it is specifically provided by statute that the time limit for a revocation hearing may be extended when an alleged parole violator by his own actions precludes the prompt conduct of such proceedings (Executive Law, § 259-i, subd 3, par [f], cl [i]). In this instance, from the time the parole violation warrant was executed on December 15, 1978 until March 1, 1979 when he was transferred to New York, relator was imprisoned in New Jersey as a result of his rape, desertion and nonsupport convictions. Such being the case, not only was he not not "subject to the convenience and practical control of the Parole Board” during this period, but also it was his own criminal activity in New Jersey which caused his predicament and delayed the conduct of the revocation hearings. That being so and both the preliminary and final revocation hearings having been promptly held upon relator’s return to New York, the petition for a writ of habeas corpus was properly dismissed. In so ruling, we would note in conclusion that the interstate compact for *954out-of-State parolee supervision (Executive Law, § 259-m et seq.) does not mandate a contrary result in the present situation. A reading of that compact (see, particularly, Executive Law, § 259-m subd 1, par [3]; § 259-n, subd 1, par [a]) reveals that it was primarily intended to facilitate the apprehension and incarceration of out-of-State parolees and probationers who at the time are not in custody so that the sending State, in this case New York, can more readily control and deal with said parolees and probationers in a manner appropriate under the prevailing circumstances. Reliance upon the compact was not necessary here, however, because relator was already imprisoned upon his New Jersey convictions when the New York parole violation warrant was executed on December 15, 1978, and relator plainly was not prejudiced by the short delay of his revocation hearings until after his discharge from State prison in New Jersey on March 1, 1979. Judgment affirmed. Greenblott, Kane and Main, JJ., concur.