MATTER OF BRIGUGLIO v. Bd. of ParoleMATTER OF BRIGUGLIO v. Bd. of Parole
The principal question raised on this appeal is whether a prospective parolee has a constitutional right to he represented by counsel at a hearing before the Board of Parole.
. Appellant Salvatore Briguglio was convicted of the crime of attempted grand larceny in the first degree. He was sentenced to an indeterminate term of imprisonment of from two to four years, which he began to serve on August 5, 1966. On October 29, 1967, after 16 months of imprisonment, appellant became eligible for parole. On August 8, 1967 he was examined by the Board of Parole as required by statute (Correction Law, § 214, subd. 4), and subsequent thereto was denied parole on the ground that he was then a poor parole risk.
Thereafter appellant brought a special proceeding in the Supreme Court, Albany County, seeking a determination that the action of the Board of Parole was contrary to the Constitution and laws of the State of New York and the Constitution of the United States, and a direction that the Board of Parole grant a new hearing to the appellant and also grant a new hearing on his parole eligibility before a court of the State of New York.
In the petition, the appellant alleged, on information and belief, conclusions of law and fact that the appellant’s conduct in prison had been exemplary and that he could live and remain at liberty without violating the law and that, at his hearing before the Board of Parole, appellant had not been given counsel or advised of his right to counsel, had not been allowed to give evidence in his own behalf or examine opposing witnesses, and was not confronted by adverse witnesses. He contended in the petition that such action of the board violated the right to counsel and due process clauses of the Constitutions of the United States and the State of New York.
The respondents served a verified answer and objections in point of law. The answer sought dismissal on the grounds that the petition did not state facts entitling the appellant to any
The Supreme Court, Albany County, dismissed the petition. The court did not pass upon the merits of appellant’s qualification for parole, but rather treated the issue as one of appellant’s right to a full-blown judicial-type hearing including the right to representation by counsel. The court rejected the appellant’s contention, and on appeal the Appellate Division, Third Department, unanimously affirmed the judgment, without opinion. Appellant appeals to this court,' as of right, on constitutional grounds.
Relying primarily on the recent cases of
Mempa
v.
Rhay
(
The two consolidated cases in
Mempa
raised the question “ of the extent of the right to counsel at the time df sentencing where the sentencing -has been deferred subject to probation (p. 130). Both petitioners had been convicted and placed on probation without being sentenced. Upon being charged with violation of probation, they were brought to court, their probation was revoked and
sentence was then imposed.
The State’s argument that the petitioners were sentenced at the time they were placed on probation and that the imposition of sentence following probation revocation is, in effect, a mere formality .comprising part of the probation revocation proceeding, was
That
Mempa
is purely a
sentencing
case and, therefore, is of little value in defining the rights of one who has
already been sentenced
is made manifest by the Supreme Court’s decision in
McConnell
v.
Rhay
(
Indeed, in several cases decided within the past year, the Federal courts have held that
Mempa
v.
Rhay (supra),
being a sentencing case, sheds no light on the problem of whether a parolee is entitled to counsel at a revocation hearing (see
Eason
v.
Dickson,
Matter of Gault (supra), another case heavily relied upon by appellant, does not, in our opinion, require that the right to counsel and other constitutional guarantees be' applied to a parole release proceeding. Gault simply held that the guarantees of the due process clause apply—-as they do in criminal cases involving an adult—-to a proceeding in which a determination is made as to whether a juvenile is “ delinquent ” as a result of alleged misconduct on his part, with the consequence that he may be committed to a State institution. The court was thus concerned only with the adjudicative or prosecutorial stage of the juvenile delinquency (criminal) proceeding. Indeed the court specifically noted that “we are not here concerned with the procedures or constitutional rights applicable to the pre-judicial stages of the juvenile process, nor do we direct our attention to the post-adjudicative or dispositional process ” (Matter of Gault, supra, p. 13; emphasis added).
In our view there is simply no constitutional basis for applying the guarantees of the due process clause to a parole release proceeding. The holding of the Supreme Court in
Escoe
v.
Zerbst
(
As part of a general program to rehabilitate State prisoners, the Legislature has adopted a comprehensive system of parole. A Board of Parole in the Division of Parole of the Executive Department is charged with the duty of determining what prisoners serving indeterminate sentences in State prisons and other specified reformatories ‘ ‘ may be released on parole and when and under what conditions ” (Correction Law, § 210). Members of the Board of Parole must ‘£ personally study the prisoners confined in the prisons and reformatories of the state
In addition, the Board of Parole is entitled to the benefit of reports and information from the warden of each prison in which the prospective parolee has been confined (Correction Law, § 214) and from ‘1 all officers and employees * * * of the department of correction and
all other
public officials [who] shall at all times cooperate with the board of parole, and shall furnish to such board, its officers and employees such information as may be necessary to enable it to perform its functions” (Correction Law, § 222; emphasis added). No prisoner may be released on parole upon his own application, “ but solely upon the initiative of the board of parole ” (Cor
Under the present statutory scheme a prisoner is not subject to the supervision of a court which traditionally acts on notice and hearing. He is instead under active
administrative
supervision of trained officials whose discretionary determination to grant parole “ depends upon information in regard to the personal traits and characteristics of the individual convicted and upon unanimous concurrence of the individual members of the Board acting upon such information and personal observations ”
(Matter of Hines
v.
State Bd. of Parole,
Appellant also argues that the board’s determination is not supported by substantial evidence because the reports submitted to the board presumably disclosed the. following facts about appellant’s character and background: (1) his excellent prison record; (2) his close relationship with his wife and two children; (3) his substantial roots in the community to which he will return, including the ownership of a home; and (4) his status as a first offender.
In our opinion, the courts below correctly refused to review the merits of appellant’s claim. Section 212 of the Correction Law provides that “ The action of the board of parole in releasing prisoners shall be deemed a judicial function and shall not be reviewable if done according to law”. In Matter of Hines v. State Bd. of Parole (supra, p. 257) we construed this statute and held that “ so long as the Board, violates no positive statutory requirement, its discretion is absolute and beyond review in the courts”. We will not overrule Hines and involve the courts of this State in superintending the parole system.
In sum, we conclude that the parole release proceeding does not require an adversary hearing. The Federal courts have consistently held, and the Supreme Court has refused to rule otherwise, that parole hearings do not involve constitutional due process. No persuasive reason has been advanced for the courts of this State to hold otherwise. The order appealed from should be affirmed, without costs.
Chief Judge Fuld and Judges Burke, Bergan, Keating, Breitel and Jasen concur.
Order affirmed.
Notes
Since the instant case is concerned solely with the question of whether due process rights apply at a parole release hearing, we indicate no view as to whether such rights apply at a parole revocation hearing.