People ex rel. McFadden v. New York State Division of Parole

Judgment, Supreme Court, Bronx County, entered July 22,1980, dismissing a writ of habeas corpus, affirmed. On June 16,1977, petitioner was sentenced to five years for robbery in the second degree. On June 5, 1979, he was paroled. On September 25, 1979, he was arrested on a parole violation charge. In January, 1980, he was restored to parole because his final parole revocation hearing was not held within the statutory 90 days. Thus, it may be seen that petitioner is no novice to the processes of the criminal justice system, and in particular, to the process pertaining to revocation of parole. On February 20, 1980, petitioner was again arrested and a parole violation warrant was lodged against him. The final parole revocation hearing, after several adjournments, was held on May 29, 1980, approximately 87 days after the preliminary hearing. The record (including the transcript of the final revocation hearing) shows that petitioner on two prior occasions, to wit, April 15 and May 5,1980, as well as on May 29, 1980, refused to attend the final revocation hearing scheduled for him. This consequence resulted from petitioner’s declining to come forward or answer calls in the block at Rikers Island House of Detention *953for Men. It is also noted that, prior to the initial original scheduled date of the final hearing (April 10,1980), petitioner was advised in writing as to his rights in respect of such hearing. Such written notice states, in pertinent part: “If you are called to the hearing even though you have applied for an adjournment you should appear otherwise you may be deemed to have waived your appearance.” At the final hearing it was concluded that petitioner waived his right to be present, and it was clearly and unequivocally demonstrated that petitioner had transgressed the conditions of his parole. On June 3,1980, only two days after the expiration of the statutory 90-day period and some five days after the final hearing, petitioner brought this habeas corpus proceeding. In the original petition, petitioner conclusorily states that he was denied his right to a final revocation hearing. In the amended petition, his counsel states on information and belief that petitioner received no notice for a final hearing and was not produced for the final hearing. The absence of an affidavit by petitioner disputing the giving of written notice of final hearing or the efforts of the authorities to produce him at such hearing, amounts, in essence, to a failure to raise a meritorious issue as to notice and supports the finding of waiver on petitioner’s part as to his presence at the final hearing. Accordingly, the record demonstrates the propriety of the dismissal of the writ by the Supreme Court. Common sense requires, inter alia, acknowledgment of petitioner’s actions herein as a strategic decision to frustrate the timely holding of the final revocation hearing, which effort has proved unavailing. The right to be present at the final parole revocation hearing is subject to waiver (see People v Epps, 37 NY2d 343). Concur — Ross, J.P., Lupiano, Silverman and Yesawich, JJ.