People ex rel. Royster v. Bombard

On the court’s own motion, its decision and order, both dated December 13, 1976, are vacated and recalled, and the following substituted decision is rendered: In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Dutchess County, dated May 14, 1976, which granted the application to the extent of directing that he be given a prompt final parole revocation hearing. Judgment reversed, on the law and the facts, without costs or disbursements, and petition granted to the extent that it is directed that petitioner be restored to parole under the conditions heretofore in effect. On May 20, 1966 the petitioner was sentenced to consecutive terms of 5 and 10 years’ imprisonment upon his convictions of the crimes of burglary in the third degree and grand larceny 941 in the first degree. He was released on parole on August 30, 1971. On January 6, 1973 the petitioner was arrested and charged with robbery in the first degree and, on November 15, 1973, he was convicted of the crime of robbery in the second degree and was sentenced to a maximum term of three years, to run concurrently with "12 years parole time owed—credit time served.” In November, 1975 the petitioner commenced this proceeding, claiming that he should be released from custody because he had never received a final parole revocation hearing. Special Term directed that the petitioner be afforded such a hearing, but refused to direct that he be released from custody. The petitioner was entitled to a prompt final parole revocation hearing, even though the violation of parole may have involved the commission of another crime (see People ex rel. Walsh v Vincent, 40 NY2d 1049; Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445; People ex rel. Allah v Warden, Bronx House of Detention, 47 AD2d 485; Matter of Wright v Regan, 46 AD2d 163). A delay of 32 months (to the time of the institution of this proceeding) constitutes an infringement upon the petitioner’s right to a prompt final revocation hearing. Hence, as it appears that the petitioner has served the term of his sentence under the 1973 conviction, he must be restored to his parole status under the 1966 convictions. The court notes that People ex rel. Walsh v Vincent (supra), which requires a prompt final parole revocation hearing even though the violation of parole may have involved the commission of another crime, rather than Moody v Daggett (— US — [45 USLW 4017]), is controlling in New York State. Hopkins, Acting P. J., Martuscello, Cohalan, Damiani and Shapiro, JJ., concur.