Emmick v. Enders

Judgment affirmed. Memorandum: The respondent Parole Board did not violate any statutory right of the petitioner, nor did it fail to provide petitioner due process of law. Respondent “afforded” petitioner a preliminary parole revocation hearing “[w]ithin 15 days after the warrant for retaking and temporary detention has been executed” (Executive Law, § 259-i, subd 3, par [c], cl [i]). Adjournments thereafter were granted at petitioner’s request and pursuant to the hearing officer’s authority (9 NYCRR 8005.4 [b] [3]; see People ex rel. Clanton v Smith, 105 AD2d 1123). When the hearing eventually was held, the hearing 1067 officer properly proceeded to “direct the presentation of evidence concerning the alleged violation, receive the statements of witnesses and documentary evidence on behalf of the prisoner, and allow cross examination of those witnesses in attendance” (Executive Law, § 259-i, subd 3, par [c], cl [v]; see, also, 9 NYCRR 8005.7 [a] [2]). In our judgment, at the close of the hearing on February 6, there was ample evidence, some of it permissible hearsay (People ex rel. McGee v Walters, 62 NY2d 317), for the hearing officer to find probable cause to believe petitioner violated his parole (see People ex rel. Calloway v Skinner, 33 NY2d 23, 31; People ex rel. Wallace v State of New York, 61 AD2d 1093). However, since petitioner raised the issue of the voluntariness of his statement, which was offered by the parole officer and received by the hearing officer, respondent requested and received an adjournment to secure the appearance of the officer to whom petitioner had given the statement. This action violated no statutory right of the petitioner. The Executive Law does not require that a preliminary parole revocation hearing be completed within the 15-day period, but only that the hearing be “scheduled to take place” within that period (Executive Law, § 259-i, subd 3, par [c], cl [iv]; People ex rel. Delrow v New York State Div. of Parole, 75 AD2d 324). When a preliminary parole revocation hearing has been timely scheduled, or held in whole or in part, and thereafter is adjourned for legitimate reasons, without prejudice to the petitioner, there is no violation of the 15-day limit (see People ex rel. Burley v Warden, 70 AD2d 518, mot for lv to app den 48 NY2d 602). Since there is nothing in the record to indicate that respondent acted less than “energetically and scrupulously” in scheduling and conducting petitioner’s preliminary parole revocation hearing, the judgment must be affirmed and the petition dismissed (People ex rel. Burley v Warden, 70 AD2d 518, 519, supra). All concur except Dillon, P. J., and Hancock, Jr., J., who dissent and vote to reverse and grant the petition in the following memorandum.