Soto v. New York State Board of Parole

— In a proceeding pursuant to CPLR article 78 to review a determination of the respondents dated December 7, 1978, revoking petitioner’s parole, petitioner appeals from a judgment of the Supreme Court, [694] Dutchess County (Aldrich, J.), dated August 2, 1982, which dismissed the petition as time barred. Judgment affirmed, without costs or disbursements. Petitioner was originally sentenced on September 9, 1975 to an indeterminate term of imprisonment of one year to life. This sentence was later reduced on September 11,1979 to a term of 1 to 5 years. On September 30, 1976, petitioner was paroled, but on May 24, 1978 was declared delinquent as of February 15, 1978, owing to several parole violations, i.e., failure to make office reports, failure to notify his parole officer of the termination of his employment, and leaving his residence program without the parole officer’s approval. On May 9,1978, petitioner was arrested on a new criminal charge and subsequently was indicted thereon. On June 9,1978, petitioner waived his right to a preliminary parole revocation hearing. Thereafter, on December 1,1978, petitioner was sentenced to a term of imprisonment of 71/2 to 15 years on the criminal charge for which he was arrested on May 9, 1978. On December 7, 1978, after several adjournments, petitioner received his final parole revocation hearing and his parole was revoked. The instant petition, filed in 1982, alleged that (1) petitioner’s final parole revocation hearing, which took place on December 7, 1978, was untimely, in that it was not scheduled within 90 days of his waiver of the preliminary parole revocation hearing (see Executive Law, § 259-i, subd 3, par [f], cl [i]) and (2) vacatur of the parole violation warrant was therefore required. In opposition to the petition the respondents alleged, as an affirmative defense, that the petition was time barred by reason of the four-month Statute of Limitations contained in CPLR 217. Special Term dismissed the petition based on the four-month Statute of Limitations defense interposed by the respondents. We affirm. It is beyond cavil that vacatur of a parole violation warrant and reinstatement of parole is the appropriate remedy for an untimely final parole revocation hearing (People ex rel. Levy v Dalsheim, 66 AD2d 827, affd 48 NY2d 1019). Accordingly, a habeas corpus proceeding is generally the appropriate vehicle to review parole revocation proceedings including the issue of whether a parolee has been denied his right to a prompt final parole revocation hearing (see People ex rel. Levy v Dalsheim, supra; People ex rel. Menechino v Warden, 27 NY2d 376, 379; People ex rel. Walker v New York State Bd. of Parole, 98 AD2d 33; People ex rel. Kellams v Henderson, 58 AD2d 1022; People ex rel. South v Hammock, 80 AD2d 947). [695] However, it is also well established “that the remedy of habeas corpus is available only to one who is entitled to immediate release from the custody he is challenging” (People ex rel. Malinowski v Casscles, 53 AD2d 954, mot for lv to app den 40 NY2d 809; People ex rel. South v Hammock, supra). Since petitioner stands convicted pursuant to a judgment rendered December 1, 1978, which petitioner acknowledges in his petition (1) is not being challenged in any way and (2) “serves as an independent basis for [his] present incarceration”, it is clear, and petitioner’s counsel so concedes in his brief, that, at this juncture, a habeas corpus proceeding would be premature and that a timely article 78 proceeding would be the proper vehicle to test the legality of respondents’ revocation of petitioner’s parole (People ex rel. South v Hammock, supra; Matter of Piersma v Henderson, 44 NY2d 982; Matter of Smith v Chairman of New York State Bd. of Parole, 44 NY2d 982). However, Special Term was correct in dismissing the instant article 78 proceeding as time barred by the appropriate Statute of Limitations. In Matter of Menechino v Division of Parole (26 NY2d 837, 838), the Court of Appeals held that an article 78 proceeding commenced in July, 1968 to review a revocation of parole in May, 1965 was “barred by the four-months period of limitation prescribed” by CPLR 217. Moreover, Matter of Menechino v Division of Parole (supra) cannot be distinguished, as the dissent suggests, on the ground that the petitioner therein sought review of a purely discretionary act, i.e., the revocation of parole, rather than the performance of a duty enjoined upon the Parole Board by section 259-i (subd 3, par [f], cl [i]) of the Executive Law. In Matter of Menechino (supra), petitioner alleged in an article 78 proceeding that the State Board of Parole’s discretionary determination revoking his parole was improper due to the Board’s failure to comply with the mandates of due process, i.e., it failed to afford him counsel at his final parole revocation hearing. In this regard, Matter of Menechino (supra) is indistinguishable from the case at bar where petitioner simply alleges in an article 78 proceeding that the Board’s discretionary determination revoking his parole was improper due to the Board’s failure to comply with the mandate of the Executive Law regarding the timeliness of his final parole revocation hearing. The decision of the Appellate Division, Third Department, in Matter of Kenny v Loos (286 App Div 97) and that of the Court of Appeals in Lindsay v New York State Bd. of Parole (48 NY2d 883), cited by the dissent, do not involve article 78 proceedings to review determinations revoking parole, and are therefore irrelevant to the case at bar. [696] Accordingly, the article 78 proceeding commenced herein over three years after the respondents’ revocation of petitioner’s parole, must be dismissed as barred by the four-month period of ' limitation prescribed by CPLR 217 (Matter of Menechino, supra). Mangano, Thompson and Lawrence, JJ., concur.