33 N.Y.2d 23 | NY | 1973
Lead Opinion
In each of the cases before us
The Supreme Court recently addressed itself to this issue with respect to indigent probationers and parolees, holding that due process does not invariably require the assistance of counsel at a preliminary or a final revocation hearing. (Gagnon v. Scarpelli, 411 U. S. 778.) The holding in Gagnon {supra) is, in part at least, at variance with our recent decision in People ex rel. Menechino v. Warden (27 N Y 2d 376). In the Menechino case, the majority were of the opinion that the right to counsel at a final revocation hearing is mandated by the due process clauses of the Federal and State Constitutions. But, in Gagnon, the Supreme Court made it clear that the Federal Constitution confers only a conditional or discretionary right to counsel at a final parole revocation hearing. To the extent that our decision in Menechino is predicated on the Federal Constitution, it must be read with Gagnon. The Gagnon decision also forecloses further debate as to a parolee’s Federal due process right to counsel at a preliminary revocation hearing. It, too, is conditional or discretionary. Thus, the issue in the cases before us narrows to a resolution of whether the State Constitution requires the assistance of counsel at the preliminary parole revocation hearing.
At the outset, it would be useful to examine the nature and scope of a preliminary hearing in the parole revocation process. To begin with, the revocation of parole is not part of a criminal prosecution, and, thus, all of the rights due a defendant in a criminal proceeding do not apply to parole revocations. As Chief Justice Burger incisively noted in Morrissey v. Brewer (408 U. S. 471), u [r] evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only
There can be little doubt that the preliminary hearing is intended to be informal and summary in nature, with only a “minimal inquiry” necessary to determine whether there is probable cause or reasonable grounds to believe that the parolee has committed acts that would constitute a violation of parole conditions. With regard to the process that is due at such hearings, the parolee is entitled to notice of the hearing and the nature of the charges. The parolee, of course, should be given an opportunity to appear at the hearing and to testify in his own behalf, as well as to present such relevant evidence, including the testimony of witnesses, as may assist the hearing officer in determining whether further revocation proceedings are warranted. Once the hearing officer is satisfied that there is probable cause to believe that the terms of parole have been violated, the parolee may be detained for a full revocation hearing. Since the preliminary hearing anticipates only a “ minimal inquiry ” as to the alleged violations and does not require a final resolution of charges or factual issues, it. is doubtful that the presence of counsel would be of any constructive assistance to the parolee. Certainly, in the vast majority of eases, there should be no need for the assistance of counsel at this preliminary stage of the parole revocation process. Of course, at the final revocation hearing, where the parolee’s fate hangs in the balance, the assistance of counsel is assured, under our State Constitution, so that the Parole Board may be “ accurately informed of the facts before it acts ’ ’. (People ex rel. Menechino v. Warden, 27 N Y 2d 376, 383.) In a Word, the preliminary revocation hearing is not critical to the fairness of the final hearing which follows.
This is not to say, however, that the assistance of counsel at the preliminary hearing may never be necessary to satisfy the requirements of due process. Undoubtedly, there will be cases in which fundamental fairness — the touchstone of due process —will compel the assistance of counsel. In giving definition to the requirements of Federal due process, the Supreme Court has formulated useful guidelines in the Gagnon case, wherein the court noted, “ [p ] resumptively, it may be said that counsel should be provided in cases where * * * the probationer or parolee makes such a request, based on a timely and colorable
In sum, a parolee’s due process right to counsel at a preliminary revocation hearing under the State Constitution should be coextensive with that under the Federal Constitution and no more. Whether due process requires the assistance of counsel at this preliminary stage should depend on the peculiarities of particular cases. The decision as to the need for counsel should be made on a case-by-case basis in the exercise of a sound discretion by the Parole Board in accordance with the afore-mentioned guidelines.
As a subsidiary issue on this appeal, appellants Calloway, Robinson and Richardson argue that Morrissey is fully applicable to all. parolees whose revocation proceedings were pending on the date of that decision (June 29,-1972). The Supreme Court, in Morrissey, stated that its decision — requiring prer liminary and final parole revocation hearings, was prospective, applicable only to ‘ ‘ future revocations of parole ’ ’. (408 TJ. S., at p. 490.) The problem seems to be one of definition — what is meant by a “ future revocation of parole ”.
For purposes of determining the applicability of Morrissey to these parolees and others similarly situated, it is necessary to understand the proceedings incident to a violation of parole. To begin with, parole revocation is a process. It is initiated by the issuance of a warrant for the retaking and temporary
In determining whether a parolee is entitled to a preliminary hearing, the critical stage in this process is the declaration of delinquency by the Parole Board member. (7 NYCRR 1.17.) That is to say, if on the date of the Morrissey decision the charges of delinquency had not yet been considered and the parolee had not yet been declared delinquent by a member of the Parole Board, then he should be entitled to a Morrissey preliminary hearing for the revocation process had not yet been engaged. That the delinquency may be declared retroactive and that the actual arrest may predate Morrissey, is, we think, irrelevant for the purpose of determining whether a Morrissey preliminary hearing should be available to the parolee. On this view, the Appellate Division correctly held that petitioner Richardson, who was declared delinquent on May 5,1972, before the Morrissey decision, was not entitled to a preliminary hearing. By the same token, relators Calloway and Robinson and petitioner Stephens, all of whom were declared delinquent subsequent to Morrissey, were properly afforded preliminary hearings.
It is also argued by appellants Calloway and Robinson, that a due process right to bail exists for a parolee detained in advance of a revocation hearing. We conclude that a parolee is not entitled to bail. Our State Constitution does not decree a right to bail, but merely proscribes “ excessive bail ”. (N. Y. Const., art. I, § 5; People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393, 398.) The right to bail is purely statutory (People v. Wirtschafter, 305 N. Y. 515,‘ 519; People ex rel. Shapiro v. Keeper of City Prison, supra) and is clearly delin
“Even beyond the intent of the statute,” Justice Hopkins aptly wrote for the court in People ex rel. Little v. Monroe (38 A D 2d 398, at p. 400), “ the granting of bail in a parole revocation proceeding would create insuperable problems. The court granting bail is not in control of the proceeding — that is within the power of the board of parole. It is the province of the board to determine when the hearing shall be held. If the person accused of delinquency did not appear at the hearing, after notice, there is no procedure whereby bail would be revoked and the person restored to the custody of the board. Even to improvise a procedure by court rule or decision would be difficult, if attainable.”
Hence, we are of the opinion that, in the absence of specific legislative direction, parolees are not entitled either to bail or to release pending a hearing before the Parole Board.
Finally, it is contended that preliminary hearings for parole violators arrested in the City of New York for violations occurring there should be conducted in the city, rather than at the Ossining Correctional Facility as is the board’s practice.
Included within a parolee’s due process right to a preliminary hearing is the right to have that hearing conducted “ at or reasonably near the place of the alleged parole violation or arrest ”. (408 U. S., at p. 485.) Ordinarily, this would indicate that preliminary revocation hearings should be conducted in the City of New York for parole violations or arrests occurring there. The reason is readily apparent — to facilitate the production of witnesses and other evidence. However, we are advised that because of the overcrowded detention facilities within the City of New York, it has been the board’s practice to detain this class of parolees at Ossining, some 35 miles away, and to conduct their
We have considered the other arguments advanced and found them to be without merit.
Accordingly, the orders in People ex rel. Calloway v. Skinner, People ex rel. Robinson v. Skinner, and Matter of Richardson v. New York State Board of Parole should be affirmed; and the order in Matter of Stephens v. Kirsch should be reversed and the petition dismissed.
. In the Calloway and Robinson cases, relators are no longer restrained of their liberty and dismissal of their appeals for mootness would ordinarily be indicated. (E.g., People ex rel. Gatti v. Amico, 30 N Y 2d 955.) However, in view of the importance of the constitutional and subsidiary issues raised, and the desirability of prompt resolution (see, e.g., Matter of Bell v. Waterfront Comm., 20 N Y 2d 54, 61; East Meadow Community Concerts Assn. v. Board Of Educ., 18 N Y 2d 129, 133, 135), we retain jurisdiction.
. There is no need for a remand in these cases to determine if any of these parolees would be entitled to the assistance of counsel under the Gagnon standards. Relators Calloway and Robinson are no longer restrained of Their liberty. Petitioner Stephens was afforded the assistance of counsel, at his hearing. Petitioner Richardson was declared delinquent and ordered returned to custody before the date of the Morrissey decision and, as explained below, should not be entitled to a Morrissey preliminary hearing.
Dissenting Opinion
(dissenting). There can be no doubt, as the entire court recognizes, that the parolees in these several cases were entitled to preliminary hearings to determine whether “ probable cause ” existed to believe that they had “ committed acts that would constitute a violation of parole conditions.” (Morrissey v. Brewer, 408 U. S. 471, 485.) In my opinion, they also had a right — based on the rationale underlying our decision in People ex rel. Menechino v. Warden (27 N Y 2d 376) — to the assistance of counsel at those hearings. Since imprisonment follows a finding that probable cause exists, a parolee should have counsel to aid him in demonstrating that there is no such basis for his detention and imprisonment.
Even though the United States Constitution may not require such legal representation (see Gagnun v. Scarpelli, 411 U. S. 778), our own State Constitution does. Due process under that document demands this “if”, as we observed in Menechino — which accorded parolees the right to counsel at parole revocation hearings — ‘ ‘ the search for truth is not to be sacrificed to administrative speed and convenience ” (27 N Y 2d, at p. 383). In short, I subscribe completely to what Justice Houle wrote in the course of his dissenting opinion in People ex rel. Calloway v. Skinner and People ex rel. Robinson v. Skinner (41 A D 2d 106, 109). After noting that the Supreme Court in Morrissey (408 U. S. 471, 487, supra) had decided that a parolee at a preliminary hearing has the right to speak in his own behalf, present documents and witnesses and cross-examine those who furnish adverse information, Judge Mould went on to say (41 A D 2d, at pp. 111-112):
*36 ‘ ‘ Such rights by the parolee * * * imply that they be exercised in an effective manner. * * *
‘ ‘ To extend the right of a hearing to the delators [parolees], without permitting them counsel so that they could effectively be heard, confront the charges and present proof on their own behalf, would be to vitiate the purpose of such hearing. No legitimate distinction can be drawn between the parole revocation hearing and the preliminary hearing that would mandate the right to counsel in the one and deny it in the other, and relators, therefore, had a constitutional right to representation by counsel at their preliminary hearings.”
I would, therefore, affirm the order appealed from in Stephens v.Hirsch (41 A D 2d 703) and reverse the orders in People ex rel. Calloway, People ex rel. Robinson (41 A D 2d 106, supra) and Matter of Richardson v. Board of Parole (41 A D 2d 179).
Judges Burke, Breitel and Gabrielli concur with Judge Jasen; Chief Judge Fuld dissents and votes to reverse in a separate opinion in which Judges Jones and Wachtler concur.
In People ex rel. Calloway, People ex rel. Robinson and Matter of Richardson: Order affirmed, without costs.
In Matter of Stephens: Order reversed, without costs, and petition dismissed.
. Since the appellants in the Galloway, Robinson and Richardson cases, are no longer incarcerated, there would, of course, be neither need nor occasion for a new preliminary hearing.
