(dissenting). We agree with petitioner that his preliminary parole revocation hearing was not timely held and that, therefore, Special Term erred in dismissing this proceeding seeking dismissal of the parole violation warrant. On January 12, 1984, after execution of the warrant and prior to the hearing, petitioner requested an adjournment due to his hospitalization for mental illness. By letter dated January 25, 1984 petitioner requested that the hearing *1068again be scheduled. It was scheduled for February 6, 1984, 12 days after petitioner’s request; on that date, due to the unexplained absence of the principal witness against petitioner, the hearing was continued and completed on February 17, 1984, 23 days after the request. The general rule is that the 15-day limit within which the Board of Parole must afford petitioner a hearing after execution of the warrant (see Executive Law, § 259-i, subd 3, par [c], cl [i]; 9 NYCRR 8005.6 [a]) is mandatory and failure of compliance requires dismissal of the warrant (see People ex rel. Gonzales v Dalsheim, 52 NY2d 9, 13; Matter of Byrne v Hammock, 97 AD2d 823; People ex rel. Burley v Warden, 70 AD2d 518, mot for lv to app den 48 NY2d 602). Deferral of the hearing beyond the 15-day period where the alleged violator cannot be present due to illness is proper provided that “the Board of Parole act energetically and scrupulously * * * to insure that the hearing not be delayed for more than the time reasonably necessary to insure the alleged violator’s right to be present and to participate” (People ex rel. Burley v Warden, supra, p 519). Here, there was no showing of any excuse for the police officer’s failure to appear on February 6 and no reason was given for adjourning the matter an additional 11 days. In our opinion, the Board has clearly not demonstrated an energetic and scrupulous effort to conclude the hearing promptly, as required by law (see People ex rel. Burley v Warden, supra).
The argument that the hearing officer could have made a finding of probable cause at the close of the partial hearing is beside the point. A parolee detained on a parole warrant is entitled to a preliminary hearing within 15 days for the obvious purpose of insuring that he is not detained beyond that time without probable cause. It is of no benefit to him to have a partial hearing but no probable cause for determination, nor is he protected by an appellate court’s determination, long after the fact, that a probable cause finding could have been made. Relator was entitled to a timely ruling on whether there was probable cause to detain him — this he did not receive. The parole violation warrant should be dismissed, the declaration of delinquency annulled and petitioner released on parole unless subject to another commitment or warrant. (Appeal from judgment of Supreme Court, Monroe County, Davis, J. — art 78.) Present — Dillon, P. J., Hancock, Jr., Callahan, Denman and Green, JJ.