People ex rel. Rodriguez v. Warden

Judgment of the Supreme Court, Bronx County (Hecht, J.), entered November 30, 1989, which dismissed the petition for a writ of habeas corpus, unanimously affirmed, without costs. Considering the totality of the circumstances, we find that the petitioner herein knowingly and intelligently waived his right to be present at a final parole revocation hearing, conducted in absentia on March 31, 1989, by persistently refusing to appear despite repeated efforts by the Division of Parole to produce him (People ex rel. McFadden v New York State Div. of Parole, 79 AD2d 952, 953). Petitioner’s contention he was too ill to attend the hearing is not supported by the record. There was no evidence, as the hearing court noted, that petitioner was not ambulatory or [207] physically unable to be transported to the courthouse. Neither petitioner nor his attorney, who was aware of his continued refusal to attend, made any request for a hearing at Rikers Island. Finally, petitioner’s counsel waived petitioner’s purported right to a new final revocation hearing and, thus, also waived any right to a fact-finding hearing on the issue of whether the petitioner’s allegedly deteriorating medical condition made it impossible for him to attend the final hearing (People ex rel. Martinez v New York State Bd. of Parole, 56 NY2d 588; People ex rel. Gonzalez v Warden, 160 AD2d 545). Concur—Sullivan, J. P., Carro, Rosenberger and Asch, JJ.