People ex rel. Menechino v. Warden

27 N.Y.2d 376 | NY | 1971

Lead Opinion

Chief Judge Fuld.

The relator is serving a lengthy term in prison following the revocation of his earlier release on parole. He had appeared before the Board of Parole at a revocation hearing without an attorney, and upon this appeal we are called upon to decide whether parolees.are constitutionally entitled, under the Federal and State Constitutions, to the assistance of counsel in parole revocation hearings.

The relator was convicted in 1947 in the former Court of General Sessions on his plea of guilty to a charge of murder in the second degree and sentenced to prison for an indeterminate term of from 20 years to life. After being imprisoned for 16 years, he was released on parole during the summer of 1963. In December of the following year, he was declared ‘‘delinquent ’ ’ and was taken into custody in March of 1965. A month later, he was brought before a ‘ ‘ parole court ’ ’ for a revocation hearing,¹ charged with having violated the conditions of his parole by associating ‘ ‘ with individuals having a criminal record ’ ’ and by giving “false and misleading information” to his parole supervisor.

The relator, not represented by a lawyer, agreed to the board’s characterization of his relationship with certain ex-convicts as ‘‘consorting’’ and admitted that he had falsely denied knowing them.² These were, as the respondent notes, ‘ ‘ technical violations ” and, although there is no intimation that the relator had committed a crime or participated in any criminal activity, the board ordered his parole revoked and barred him from being reconsidered for further parole for at least two years. Since that initial hearing, he has appeared before the board on three different occasions, also without counsel, for reconsideration of parole release. In each instance, apparently on the basis of his initial parole violation, reconsideration was denied. He is not scheduled to meet with the board again until June of 1971.

Some time later, in July, 1968, the relator, asserting that he had constitutional rights both to counsel and to certain other procedural safeguards, brought an article 78 proceeding to redress their deprivation. It is enough to say that that proceeding was dismissed on the ground that it had been commenced beyond the time permitted by statute. (See Matter of Menechino v. Division of Parole, 26 N Y 2d 837, affg. 32 A D 2d 761, revg. 57 Misc 2d 865.)³ In reaching that conclusion, this court noted that “ our determination [was] without prejudice to any other proceeding which [Menechino] may be advised to institute ” (26 N Y 2d, at p. 838). The relator thereupon brought the present habeas corpus proceeding in Dutchess County, again claiming that he was deprived of his due process rights at the parole revocation hearing. Following Special Term’s dismissal of the writ — under constraint of cases decided by the Appellate Division in the Second Department — he appealed directly to our court on constitutional grounds (CPLR 5601, subd. [b], par. 2).⁴

The Correction Law, as it read in 1947 (see supra, p. 378, n. 1), provided that, whenever there is “ reasonable cause to believe ’ ’ that a paroled prisoner has violated his parole, the Board of Parole “ shall declare [him] to be delinquent ” (Correction Law, § 218; now § 212, subd. 7). The board, the statute continued, shall give such parole violator “ an opportunity to appear personally, but not through counsel or others, before [three members of] such board ** * and explain the charges made against him * * * and may, if it sees fit, require [him] to serve out in prison the balance of the maximum term for which he was originally sentenced ’ It is apparent, therefore, that the board is vested with unfettered discretion in deciding whether or not a parole violation has occurred and, if it has, whether or not the parolee should be returned to prison.

The reported decisions as to whether a parolee has a right to counsel at a parole revocation hearing are divided. Although most of the courts which have passed upon the matter have held that there is no such right under the Due Process Clause of the Fifth or Fourteenth Amendment (see, e.g., Earnest v. Willingham, 406 F. 2d 681, 682; Rose v. Haskins, 388 F. 2d 91; Hyser v. Reed, 318 F. 2d 225; Johnson v. Stucker, 203 Kan. 253, cert. den. 396 U. S. 904; Robinson v. Cox, 77 N. M. 55; State ex rel. London v. Pardon and Parole Comm., 2 Ohio St. 2d 224; Beal v. Turner, 22 Utah 2d 418), we prefer the contrary view, expressed by a few courts, as well as by the commentators, that the right to the assistance of an attorney at the hearing is constitutionally mandated. (See People ex rel. Combs v. La Vallee, 29 A D 2d 128 [4th Dept.], app. dsmd. 22 N Y 2d 857; Commonwealth v. Tinson, 433 Pa. 328; Warden v. Palumbo, 214 Md. 407; see, also, Menechino v. Oswald, 430 F. 2d 403, 409; Cohen, Sentencing, Probation and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex. L. Rev. 1; Note, Constitutional Law; Parole Status and the Privilege Concept, 1969 Duke L. J. 139,142; Note, Parole Revocation in the Federal System, 56 Geo. L. J. 705, 740.)⁵

The United States Supreme Court has not had occasion to consider whether a parolee has a constitutional right to be represented by an attorney at a parole revocation hearing but it has explicitly held that counsel must be afforded a defendant at a proceeding to revoke probation. (See Mempa v. Rhay, 389 U. S. 128; McConnell v. Rhay, 393 U. S. 2.) These cases involved the Washington “ deferred sentencing ” procedure under which persons convicted of crimes could be released on probation either immediately following their convictions or, as in the Mempa case itself, after serving a term of imprisonment. Observing that a proceeding to revoke such probation not only resulted in the imposition of a new penalty but that the determination was ‘‘based on the alleged commission of offenses [i.e., acts in violation of probation] for which the accused is never tried” (Mempa v. Rhay, 389 U. S. 128, 137, supra), the court decided that due process required that ‘ ‘ a lawyer * * * be afforded * * * whether [the proceeding] be labeled a revocation of probation or a deferred sentencing.”

There are, of course, differences between Washington’s deferred sentencing procedure, probation revocation and parole revocation but such differences cannot, and should not, militate against the need for a lawyer where revocation of parole results in the deprivation of liberty. As we read Mempa v. Rhay (389 U. S. 128, supra), we are persuaded—as other courts have been (see, e.g., Hewett v. North Carolina, 415 F. 2d 1316, 1322-1323; Ashworth v. United States, 391 F. 2d 245, 246)—that it may not be limited to its narrow factual content. The principle which underlies the decision in Mempa is sufficiently broad to encompass the revocation of parole as well as of probation. In both, the decision to deprive an individual of his liberty turns on factual determinations, and we would say, as did the Supreme Court in the Mempa case (389 U. S., at p. 135), that “ the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case * * * is apparent.”

Once the Board of Parole decides that a prisoner is to be granted parole, he is released on specific conditions (Correction Law, § 215), and he may not again be incarcerated unless the board concludes, after a hearing, that he has violated his parole in one of the respects enumerated in section 216 of the statute. The purpose of the hearing is to afford the parolee ‘ ‘ an opportunity to appear * * * and explain the charges made against him” (Correction Law, § 218; now § 212, subd. 7). It is, in a very real sense, an accusatory proceeding in which the outcome — liberty or imprisonment — is dependent upon the board’s factual determination as to the truth of specific allegations of misconduct. We agree with the Appellate Division in Combs (29 A D 2d, at p. 131, per Bastow, J.) that, “ [w]hen all the legal niceties are laid aside a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned. It involves a deprivation of liberty just as much as did the original criminal action and * * * falls within the due process provision of section 6 of article I of our State Constitution.” Indeed, the revocation of Menechino’s parole may actually lead to imprisonment for the rest of his life. Can there be, in such a case, any reasonable doubt as to the value of counsel ‘ ‘ in developing and probing factual and legal situations which may determine on which side of the prison walls appellant will be residing? ” (Commonwealth v. Tinson, 433 Pa. 328, 333, supra.)

In short, to cull from the Supreme Court’s opinion in Powell v. Alabama (287 U. S. 45, 68-69), the right to be heard would be ‘‘of little avail if it did not comprehend the right to be heard by counsel.” (See, also, Goldberg v. Kelly, 397 U. S. 254, 270.)

Certainly, a “ parole court ” or a parole board panel may not be permitted—simply because it is an administrative body rather than a judicial tribunal—to base its determination, having so serious an impact on the lives of the individuals who appear before it, on a possibly mistaken view of the facts owing to the parolee’s inability to make a proper factual presentation. In the present case, for instance, counsel would have been able not only to analyze and question the accuracy of the parole supervisor’s report but also would have been available to educe and marshal the facts necessary to refute the technical and rather ambiguous charge of ‘ ‘ consorting.’’

It is for reasons such as these that the Supreme Court, rejecting all efforts to limit the right to counsel to the narrow confines of “ criminal prosecutions ” under the Sixth Amendment, has treated such right as an essential element of due process applicable to all proceedings, whether they be classified as civil, criminal or administrative, where individual liberty is at stake. (See Mempa v. Rhay, 389 U. S. 128, supra; Matter of Gault, 387 U1. S. 1; see, also, Specht v. Patterson, 386 U. S. 605; Hewett v. North Carolina, 415 F. 2d 1316, 1323, supra; United States ex rel. Schuster v. Herold, 410 F. 2d 1071; Shone v. State of Maine, 406 F. 2d 844.) No matter how the proceeding be characterized, the demands of due process, under both the United States Constitution and the Constitution of New York State, require that a parolee be represented by a lawyer, and entitled to introduce testimony, if he so elects. The constitutional guarantee demands no less if the search for truth is not to be sacrificed to administrative speed and convenience. (Cf., e.g., Goldberg v. Kelly, 397 U. S. 254, 266, supra; Escalera v. New York City Housing Auth., 425 F. 2d 853, 867, cert. den. 400 U. S. 853.)

It is difficult, if not impossible, to anticipate all the questions that may arise to confront the Board of Parole and the courts — and we shall not even attempt to address ourselves to them. We prefer to have them answered as they are actually presented on a case-by-case basis. This is in the very nature of the judicial process. It is desirable, however, to indicate that the hearings we are directing must not be permitted to unreasonably delay the proceedings. The presence of an attorney, the receipt of testimony offered by the parolee, are required in order to enable the board to ascertain the facts, pro and con, upon which it is to make its determination. In other words, participation by counsel need be no greater than is required to assure, to the board as well as to the parolee, that the board is accurately informed of the facts before it acts, and the permitted presentation of testimony by the parolee need be no greater than is necessary for that same purpose.

Meeting these requirements will not, we hasten to interpolate, occasion the slightest relaxation of supervisory control over parolees. It is the board alone which is to ascertain the facts and decide their ultimate importance. The presence of counsel is merely designed to afford the prisoner an added measure of protection; the receipt of testimony which he may offer is one of the fundamentals of fair play. Together, these two elements, the presence of counsel and the receipt of evidence, constitute the essential characteristics of our system of administration of justice.

We find completely unpersuasive the contention that, since parole is a mere ‘ ‘ privilege, ’ ’ a matter of grace, and not a “ right,” various constitutional guarantees, including the right to counsel, may properly be denied at a revocation hearing.

“ Even if a distinction exists between the components of the right-privilege dichotomy, ’ ’ one Federal Court of Appeals observed in a case involving the revocation of probation (Hewett v. North Carolina, 415 F. 2d 1316, 1322-1323, supra), “ when a state undertakes to institute proceedings for the disposition of those accused of crime it must do so consistently with constitutional privileges, even though the actual institution of the procedure was not constitutionally required.” (See, also, Goldberg v. Kelly, 397 U. S. 254, 262-263, supra; Escalera v. New York City Housing Auth., 425 F. 2d 853, 861, supra; Note, Constitutional Law; Parole Status and the Privilege Concept, 1969 Duke L. J. 139, 142; Cohen, Sentencing, Probation and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex. L. Rev. 1; Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1451.)⁶

Nor is there any support for the contention that the appearance of counsel or the calling of witnesses would work to the detriment of the board or the parolee. There is no evidence to indicate any adverse effect upon the parole systems of those jurisdictions which have, by legislation or by force of constitutional provision, required the presence of a lawyer. (See Sklar, Probation and Parole Revocation Hearings, 55 J. Crim. L., Crim. & P. S. 175, 181-182; Kadish, The Advocate and the Expert-Counsel in the Peno-Correctional Process, 45 Minn. L. Rev. 803, 837-838.)⁷

The relator did not request the assistance of a lawyer at his hearing but that omission did not constitute a waiver of his right to counsel—and, indeed, no such point is asserted. It is quite true that, as a general rule, the failure to object at a trial or hearing effects a waiver and prevents a party from urging the matter on appeal but that rule cannot, in the very nature of things, apply in a case such as this. If the relator had a constitutional right to be represented, he should have been advised of that right. In the absence of competent legal assistance, he may not be precluded from arguing that he is entitled to a lawyer because he did not know enough to ask for one. Simply stated, he may not be deemed to have made a knowing or informed waiver of his right to counsel. (See, e.g., Johnson v. Zerbst, 304 U. S. 458, 464-466; People v. Malloy, 22 N Y 2d 559, 566-567.)⁸

In bringing this opinion to a close, we note our agreement with the observation, frequently made, that the parole system is an enlightened effort on the part of society to rehabilitate convicted criminals. Although few circumstances could better further that purpose than a belief on the part of such offenders in a fair and objective parole procedure, hardly anything could more seriously impede progress toward that important goal than a belief on their part that the law’s machinery is arbitrary, too busy or impervious to the facts. The desired end can become a reality only by requiring obedience to the demands of due process and granting parolees a hearing at which they will be represented by counsel.

The judgment appealed from should be reversed, without costs, and the matter remitted to the Board of Parole for the purpose of conducting a hearing at which the relator shall be entitled to the assistance of counsel and permitted to call witnesses.

1 . Section 218 of the Correction Law at the time provided that, when a parolee is returned to custody for violating his parole, the Parole Board “ shall, as soon as practicable, hold a parole court at such prison or institution ”. The section was later amended to delete the reference to a “parole court”, substituting therefor a panel of “three members ” (L. 1968, ch. 203) but no change was made in the nature of the proceeding. Although section 218 was repealed in 1970 (L. 1970, ch. 476, § 44), the repealing statute declared that the provisions of the section “ shall continue to apply in eases where the sentence involved is for an offense committed” before September 1, 1967. Another section — numbered 212 — replaces section 218 for prisoners sentenced after that date.

2 . The record before the board did not disclose that the relator’s only relationship with the ex-convicts in question was, assertedly, through his job where they were fellow construction workers and that one of the men had allegedly been instrumental in obtaining the job for him.

3 . The court at Special Term had decided in the relator’s favor, directing the Parole Board to hold a new hearing at which he was to be apprised of the accusations against him, of his right to examine witnesses against him and of his right to be represented by counsel. (Matter of Menechino v. Division of Parole, 57 Misc 2d 865, 870, supra.)

4 . The relator also instituted — in August of 1969 — an action in the Federal District Court, asserting that he was entitled to notice of the charges against him, confrontation of witnesses and assistance of counsel at his next parole release hearing before the Parole Board. Although his application was denied, the United States Court of Appeals for the Second Circuit, in affirming the judgment before it, wrote that, had parole revocation been at issue rather than parole release, “fundamental fairness [might] dictate * * * that the prisoner be accorded constitutional due process at a trial-type hearing, including the right to legal counsel”. (Menechino v. Oswald, 430 F. 2d 403, 409.)

5 . The Combs case (29 A D 2d 128, supra), decided by the Appellate Division for the Fourth Department, found it unnecessary to invoke the Due Process Clause of the Fourteenth Amendment, holding that a parolee is entitled to an attorney under the provisions of section 6 of article I of the New York State Constitution “ pertaining to the right to counsel and its guarantee of due process ” (p. 130) —and we note our agreement with this view. The Appellate Divisions for the other Departments have, however, reached a contrary conclusion. (See Matter of Menechino v. Division of Parole, 32 A D 2d 761 [1st Dept.], affd. on other grounds 26 N Y 2d 837, supra; People ex rel. Smith v. Deegan, 32 A D 2d 940 [2d Dept.]; People ex rel. Ochs v. La Vallee, 33 A D 2d 80 [3d Dept.], app. dsmd. 26 N Y 2d 697.)

6 . In view of the court’s decision in Mempa v. Rhay (389 U. S. 128, supra), we doubt the continued viability of the right-privilege distinction reflected in Escoe v. Zerbst (295 U. S. 490, 492-493), upon which the respondent places reliance. Although it may well be argued that Mempa has overruled Escoe, we find it necessary merely to point out that the Supreme Court not only did not mention that decision in its opinion in Mempa but has consistently held in recent years that substantial interests, even though denominated “privileges,” may not be taken from an individual by government action in disregard of fundamental constitutional rights. (See, e.g., Cafeteria Workers v. McElroy, 367 U. S. 886, 894; Speiser v. Randall, 357 U. S. 513, 518; Wieman v. Updegraff, 344 U. S. 183, 191-192.)

7 . The following are some of the jurisdictions in which the defendant is entitled to counsel: Alabama (Ala. Code, tit. 42, § 12); Delaware (Del. Code Ann., tit. 11, § 4352, subd. [d]); District of Columbia (D. C. Code, § 24-206); Florida (Fla. Stats. Ann., § 947.23, subd. [1] [1963 Supp.]); Maryland (Warden v. Palumbo, 214 Md. 407, supra); Michigan (Mich. Stats. Ann., § 28.2310, subd. [1]); Montana (Mont. Rev. Code, §§ 94-9838, 94-9835 [1963 Supp.]); Pennsylvania (Commonwealth v. Tinson, 433 Pa. 328, supra).

It is of more than passing significance that the Model Penal Code provides that the parolee shall, in preparing for a parole revocation hearing, “be permitted to advise with his own legal counsel ” and at the hearing “may admit, deny, or explain the violation charged, and * * * present proof, including affidavits and other evidence, in support of his contention ” (Model Penal Code, Proposed Official Draft [1962], § 305.15).

8 . It is to be noted that, in Mempa v. Rhay (389 U. S. 128, 131, supra), the petitioner’s failure to request a lawyer at the hearing was not regarded as a waiver of his right to be represented by counsel at that hearing. (See, also, Walkling v. Washington Bd. of Prison Terms [decided with Mempa], 389 U. S., at p. 132.)

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Dissenting Opinion

Scileppi, J. (dissenting).

I dissent and vote to affirm, for as I read the Constitution, there is no right to counsel at parole revocation hearings.

Today’s decision equates the revocation of parole with proceedings which directly curtail the freedom of an individual. It is argued that parole revocation results in a loss of liberty which is qualitatively no different than that which results when a person is found guilty of a crime or subjected to civil or administrative deprivations of liberty (see, e.g., Matter of Gault, 387 U. S. 1; Specht v. Patterson, 386 U. S. 605; Gideon v. Wainwright, 372 U. S. 335; cf. Goldberg v. Kelly, 397 U. S. 254). I find no compelling reason in either logic or in constitutional law which justifies such a conclusion. The majority in all candor, admits that the result which it reaches is contrary to the view expressed in the majority of jurisdictions which have considered the problem (see, e.g., Earnest v. Willingham, 406 F. 2d 681; Williams v. Patterson, 389 F. 2d 374; Rose v. Haskins, 388 F. 2d 91, cert. den. 392 U. S. 946; Hodge v. Markley, 339 F. 2d 973, cert. den. 381 U. S. 927; Jones v. Rivers, 338 F. 2d 862; Hyser v. Reed, 318 F. 2d 225, cert. den. sub nom. Thompson v. United States Bd. of Parole, 375 U. S. 957; Washington v. Hagan, 287 F. 2d 332, cert. den. 366 U. S. 970; Johnson v. Stucker, 203 Kan. 253, cert. den. 396 U. S. 904; Beal v. Turner, 22 Utah 2d 418; Robinson v. Cox, 77 N. M. 55; State ex rel. London v. Pardon and Parole Comm., 2 Ohio St. 2d 224; Wingo v. Lyons, 432 S. W. 2d 821 [Ky. Ct. App.]; John v. State, 160 N. W. 2d 37 [Sup. Ct., No. Dak.]; Murray v. State, 444 P. 2d 236 [Okla. Cr.], cert. den. 393 U. S. 1059; Mottram v. State of Maine, 232 A. 2d 809).

Notwithstanding this considerable and prevailing body of authority, it opts for the rule that the due process clause of the Fifth and Fourteenth Amendments to the Federal Constitution requires the presence of counsel at parole revocation hearings. This overlooks the special nature of parole which this court recently emphasized in Matter of Briguglio v. New York State Bd. of Parole (24 N Y 2d 21) where we unanimously held that there was no constitutional right to counsel at parole release hearings. Although it is true that in Briguglio we did not consider the question of counsel at parole revocation hearings (see 24 N Y 2d, at p. 26, n.), our discussion of the nature of the parole system is relevant to the case at bar. As we wrote (24 N Y 2d 26-28)¹:

‘ ‘ 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 * * * so as to determine their ultimate fitness to be paroled ’ (Correction Law, § 210). As each prisoner sentenced under an indeterminate sentence is received in the State institution, the Board of Parole must obtain and file 'information as complete as may be obtainable at that time with regard to each such prisoner ’ (Correction Law, § 211). Section 211 further provides: ‘ Such information shall include a complete statement of the crime for which he is then sentenced, the circumstances of such crime, the nature of his sentence, the court in which he was sentenced, the name of the judge and district attorney and copies of such, probation reports, as may have been made as well as reports as to the prisoner’s social, physical, mental and psychiatric condition and history. It shall be the duty of the clerk of the court, the commissioner of mental hygiene and all probation officers and other appropriate officials to send such information as may be in their possession or under their control to the board of parole upon request. The board of parole shall also at that time obtain and file a copy of the complete criminal record of such prisoner and any family court record that may exist. When all such existing available records have been assembled, they shall be presented to the board of parole or to some officer designated by it, who shall determine whether any further investigation of such prisoner is necessary at that time, and, if so, the nature of such investigation, and shall thereupon order it to be made. Such investigations shall be made while the case is still recent, and the results of them with all other information shall be filed in the office of the division so as to be readily available when the parole of such prisoner is being considered. ’

“ 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 ‘ 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 ’ (Correction Law, § 214). Before a prisoner is initially released on parole, the Board of Parole must have before it a report from the warden or superintendent of the institution in which the inmate has been confined (Correction Law, § 214). That report details the inmate’s conduct in prison and the extent to which the inmate responded to efforts made in the institution to improve his mental and moral condition (Correction Law, § 214). The board must also have a statement of the prisoner’s attitude toward society and toward authority generally and specifically of his attitude toward those who arrested, prosecuted and sentenced him. The board 'shall also have before it the report of such physical, mental and psychiatric examinations as have been made of such prisoner which so far as practicable shall have been made within two months of the time of his eligibility for parole ’ (Correction Law, § 214). Finally, ‘ before releasing any prisoner on parole, ’ the Board of Parole shall have him appear and ‘ shall personally examine him and check up so far as possible the reports ’ which they have before them (§ 214). The statute (§ 213) makes it quite clear that ‘ Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties assigned in prison, but only if the board of parole is of opinion that there is reasonable probability that, if such prisoner is released, he will live and remain at liberty without violating the law, and that his release is not incompatible . with the welfare of society. ’ ”

The Parole Board makes, what is basically a discretionary determination, that the prisoner is a person suitable for the privilege of parole, and the prisoner is allowed to leave the jailhouse. He is not, however, a free man. The parolee remains under active administrative supervision of parole officials. Thus, when the relator herein was initially placed on parole he was not at liberty to engage in any course of conduct which he saw fit. He was granted conditional liberty as a matter of grace and not as of right (Mottram v. State of Maine, supra) and he retained his status as a convict (see Escoe v. Zerbst, 295 U. S. 490). In this regard it is significant that he has already been arrested, tried and convicted in accordance with the constitution. As a result of this conviction, he has been sentenced to punishment by imprisonment. True, he was thereafter paroled but parole is not an unconditional discharge. It is merely an administrative declaration that if the conditions are satisfied, the parolee may serve ‘ ‘ the remainder of his sentence by having his liberty restrained in a manner analogous to that employed in the ‘ trusty ’ or 'honor’ system of prison discipline ” (Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 588). As the Supreme Court said in Anderson v. Corall (263 U. S. 193, 196): "The parole authorized by the statute does not suspend service or operate to shorten the term. While on parole the convict is bound to remain in the legal custody and under the control of the warden until the expiration of the term * * * While this is an amelioration of punishment, it is in legal effect imprisonment.” Thus, the Parole Board was free to alter the nature of relator’s imprisonment when relator violated his parole. The question whether the parolee should be subjected to a revocation of his parole is not an accusation of a crime, but merely a determination of whether the parolee may still receive the privilege of parole. Though the revocation of parole required that relator serve the balance of his sentence inside prison walls,² the action of the board was not a taking of his liberty within the meaning of the due process clause.

It would appear that the conclusion reached by the majority has been strongly motivated by cases such as Mempa v. Rhay (389 U. S. 128) where the Supreme Court held that there was a constitutional right to counsel where probation was revoked and the defendant was then resentenced. Any view that probation and parole are to be governed by the same rules is, I suggest, unfounded. As we explicitly recognized in Matter of Briguglio v. Board of Parole, (supra, at pp. 25-26):

“ 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 (393 U. S. 2, 3-4).

* * *

‘ ‘ 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, 390 F. 2d 585; Williams v. Patterson, 389 F. 2d 374; Rose v. Haskins, 388 F. 2d 91; Holder v. United States, 285 F. Supp. 380). Each of the cited cases held that a revocation hearing is not a trial requiring an adversary proceeding with representation by counsel.”

(See, also, Johnson v. Stucker, supra, at p. 256.) Therefore, I am unable to agree with the majority’s assertion that the Mempa rationale encompasses hearings for the revocation of parole. Though it is true that both revocation of parole and revocation of probation involve factual determinations, the basis of the right to counsel at proceedings to revoke probation is, that the criminal trial, which includes sentencing has not ended. Additionally, the probationer is subject to an increased sentence at the revocation hearing. Such is not the case with the parolee. He is not subject to increased sentence and may only be required to serve out the balance of the maximum term for which he was originally sentenced or a part thereof as the Board of Parole may determine (Correction Law, § 218). The two proceedings are not constitutional equivalents. As Chief Judge Weick of the Sixth Circuit Court of Appeals wrote in Bose v. Haskins (supra, at p. 95): “ The constitutional rights of [relator] which he claims were violated, apply prior to conviction. They are not applicable to a convicted felon whose convictions and sentences are valid and unassailable, and whose sentences have not been served.” Thus, relator’s rights on the revocation of parole were limited to those provided by the Legislature. The relevant statute (Correction Law, § 218) provided, inter alia, that: ‘ ‘ Whenever there is reasonable cause to believe that a prisoner who has been paroled by the state board of parole, has violated his parole, such board of parole as soon as practicable shall declare such prisoner to be delinquent * * * [The warden of each prison * * * shall promptly notify the state board of parole of the return of a paroled prisoner charged with violation of his parole. Thereupon such] board of parole shall, as soon as practicable, [hold a parole court at such prison or institution and consider the case of] such parole violator [, who shall be given] an opportunity to appear personally, but not through counsel or others, before such board of parole and explain the charges made against him.” (Emphasis supplied.) It is, therefore, clear that what is contemplated is not a full-blown trial but rather an informal nonadversary proceeding. I do not think that we should assume that the Parole Board, whose aim and purpose is to benefit the defendant, becomes his adversary when he violates one of the conditions of his parole. Thus, I do not agree with the majority’s assertion that relator’s right to be heard is meaningless without the presence of counsel. As I have indicated, parole is largely a matter of discretion and the board is faced with the question whether the parolee has engaged in a course of conduct which requires the board to rescind the original decision that he could benefit from parole. Moreover, the presence of counsel in such a proceeding would hinder the board from the performance of this role. As pointed out by Judge Breitel, it would unnecessarily result in undue delays and procedural difficulties which already plague the administration of criminal justice. This has apparently been recognized by the drafters of the Model Penal Code who have not suggested that counsel be present at parole revocation hearings. Instead they merely recommend that in preparing for the hearing, the parolee ‘‘be permitted to advise with his own legal counsel ” (A. L. I. Model Penal Code, Proposed Official Draft [1962], § 305.15).

The Legislature has declared that counsel is unnecessary at such a proceeding and I am not persuaded that this provision is violative of either the State or Federal Constitutions. In this regard, the majority has taken the view that parole revocation hearings conducted without the presence of counsel are offensive to a concept of fair play under notions of procedural due process. This is an unwarranted extention of the due process clause. As Mr. Justice Black wisely cautioned in his dissenting opinion in In re Winship (397 U. S. 358, 384-385):

‘ ‘ The many decisions of this Court that have found in [the due process clause] a blanket authority to govern the country according to the views of five members of this institution have ignored the essential meaning of the very words they invoke. When this Court assumes for itself the power to declare any law—state or federal—unconstitutional because it offends the majority’s own views of what is fundamental and decent in our society, our Nation ceases to be governed according to the ‘ law of the land ’ and instead becomes one governed ultimately by the ‘ law of the judges. ’

‘‘ It can be, and has been, argued that when this Court strikes down a legislative act because it offends the idea of ‘ fundamental fairness,’ it furthers the basic thrust of our Bill of Rights by protecting individual freedom. But that argument ignores the effect of such decisions on perhaps the most fundamental individual liberty of our people—the right of each man to participate in the self-government of his society.

* * *

‘‘And the States, to the extent they are not restrained by the provisions in that document, were to be left free to govern themselves in accordance with their own views of fairness and decency. Any legislature presumably passes a law because it thinks the end result will help more than hinder and will thus further the liberty of the society as a whole. The people, through their elected representatives, may of course be wrong in making those determinations, but the right of self-government that our Constitution preserves is just as important as any of the specific individual freedoms preserved in the Bill of Rights.” Lastly, it would appear that the majority has confused what is constitutionally required with what may be desirable and sustainable if promulgated by a duly constituted legislative body. While some commentators and advisory commissions have recommended that counsel be afforded at parole revocation hearings (see, e.g., Task Force Report: Corrections, pp. 6, 70, 97; Note Constitutional Law: Parole Status and the Privilege Concept, 1969 Duke L. J. 139, 145-146), these are not pronouncements of constitutional law, but merely suggestions. The Legislature, however, has not chosen to adopt such a recommendation and I see no compelling reason why we should substitute their judgment or ours for that exercised by the Legislature.

Accordingly, the judgment appealed from should be affirmed.

1 . It is noted that in the time which has elapsed since our decision in Briguglio, there have been several amendments and additions to the statutes discussed therein (see L. 1969, ch. 270; L. 1970, ch. 476; Correction Law, § 212). These amendments have not altered the underlying concept of the parole system of this State and as the majority observes, at footnote 1, p. 378 of its opinion, they have no effect on the instant case.

2 . This, of course, is not to say relator will never again be eligible for parole (see Correction Law, § 212, subd. 7).

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Dissenting Opinion

Breitel, J. (dissenting).

I dissent and vote to affirm, but for reasons not altogether the same as those expressed by Judge Scileppi.

Although revocation of parole is not the same as revocation of probation, they share, as pointed out by Chief Judge Fuld in his opinion for the majority, many things in common. It is for this reason one may believe, as a matter of policy, that there should be the right to counsel in parole revocation. At the same time every desirable policy, even if based on fairness, does not necessarily attain constitutional dimension warranting judicial mandate. In the case of the right to counsel it is a policy that requires the flexibility that only legislation may provide, namely, a code of procedure, preparation, implementation by facilities, personnel, and, above all, funds.

The gap-bridging reasoning which advances from probation revocation to parole revocation is, recognizably, the result of an erosive process which progressively treats each small distinction in a series as being of no account. Of course, as steps are taken in any novel direction it frequently becomes increasingly difficult to mark the instant gap before the next step, only because another gap was bridged earlier. The process becomes endless and the logic is not that of rational compulsion but the dialectic piecemeal erosion of distinction.

Vagaries in constitutional adventures often have a deeper cause. They stem from the unperceived or dimly perceived assumption that all that is fair, good, or desirable must be constitutional and, the converse, that all that is unfair, evil, and undesirable must be unconstitutional. If this were true, however, then apart from budget-making, areas of private law, and the like, there would be little left for legislative action. All important public law questions affecting individuals would then become issues of constitutional dimension and the province of the courts. Because declared constitutional the judicial pronouncement becomes supreme.

The point of these comments, applied to the matter at hand, is that, although I am convinced that it is fair, good, and desirable that parolees have the right to counsel in parole revocation, this is a policy view which does not rise to a constitutional 'principle and it is not desirable for the courts to impose this policy view on an overburdened correctional and criminal justice system. The ultimate truth is that more than the resources of the law library are required to solve the root problems in bettering the correctional and parole systems. Conceived and developed as humane ameliorations of a harsh prison system, they have undoubtedly fallen behind humane and just standards currently held.

The majority opinion sensitively recognizes that the new procedure will threaten to dam the already sluggish movement in the criminal justice system. Hence, the a priori limitation on the role of counsel and the hearing at which he will represent his client. But like unloosed quicksilver, the procedure will hardly remain confined. Testimony, we are told, may be adduced but only ‘ ‘ that the board is accurately informed of the facts before it acts ’ ’. It is difficult to think of any other proof which is properly admissible before a full-fledged tribunal and which would not be admissible, therefore, before the parole board.

There are or will be other practical problems.

Are the hearings to be recorded? Where will they be held? Who is to assign counsel for indigent parolees? Who will examine witnesses for the board? Will the board act as prosecutor of the delinquency charges and finder of the facts as well! Must the county prosecutor attend? Will hearsay be admissible? Must the determination rest on common-law evidence ? If the hearings are held at places of detention, who will pay for the cost of transporting counsel and witnesses? What will be the standard of proof for the board to revoke parole: reasonable ground, substantiality of evidence, preponderance of the evidence, some sort of equivalent of proof beyond a reasonable doubt?

And what if, in the view of counsel or the parolee, the board has applied the ‘ ‘ limitations ’ ’ on the hearing beyond the intention of the Constitution as now extrapolated? The Constitution, law, and “fundamental fairness” must allow judicial review of an alleged constitutional violation, and then there must be standards for reviewing the ' ‘ record ’ ’ made before the board, at least for gross unreasonableness of its action, if not on more probing standards. Moreover, where a new criminal offense is charged as the breach of parole, and a return to prison for many years may be entailed, it will be difficult, if fairness and equal protection of the laws are argued, to deny a reasonable doubt standard, or, in some future imagination, even a trial by jury.

The end is not yet. There must be postrevocation proceedings for constitutional violations, unbarrable by time limitations or laches. As in this very case, habeas corpus relief may not be denied, even after a long time lapse and without there ever hairing been a demand for counsel. Since the remedy created today affects, and it is justified only because it affects, the integrity of the fact-finding process, it should be applied retroactively, if ‘ ‘ fairness ’ ’ and ‘ ‘ fundamental constitutional rights ”, however newly discovered, are to be honored and a demeaning surrender to pragmatic considerations spurned. Moreover, as Judge Scileppi points out incisively, it is a thin line which separates parole release from parole revocation. This case shows that stare decisis will not suffice to maintain so thin a line very long. Lemmings, instinctively committed to their own self-destruction, could hardly be more assiduous.

None of this is to say that there is not a serious criminological problem. Parole revocation as it presently obtains does not satisfy modern standards. It is for this reason that the President’s Crime Commission Corrections Task Force, voted without dissent that there should be a right to counsel in parole revocation hearings. (The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections, pp. 86-88). But the recommendation was addressed to legislatures which could provide, limit, and change flexible procedures, as experience required, to establish a practical system and provide appropriate personnel to implement the system. A modest proposal in this direction was made in the Model Penal Code, drafted by the American Law Institute (A. L. I. Model Penal Code, Proposed Official Draft [1962], § 305.15).

As it is now, parole board members travel continually from prison to prison to handle calendars that overwhelm them and on which they allot minutes for personal appearances by prisoners seeking to be paroled.^*

Probation revocation is a different matter. Courts revoke probation, not the parole board. Probation revocation is a function of the sentencing court in the courthouse in the county of venue.

To be sure a few States have provided the right to counsel on parole revocations. But none, with perhaps the exception of Pennsylvania, has the population, urbanization, and crime rate of this State, let alone the beleaguered system which currently attracts notoriety for purported denial of expedition in the handling of the individual caught in its mesh. The Federal system provides the right to counsel by administrative rule, the most flexible and controllable of methods.

Indeed, for a system in crisis to take on the new burden by constitutional mandate, and therefore unchangeable by mere statute, will undoubtedly make modern experience with coram nobis and habeas corpus relief seem not to have been so heavy a burden at all. Moreover, in doing so, the explicit direction of the Legislature is, in effect, declared unconstitutional. The statute provides in pertinent part: ‘ ‘ Thereafter, the board shall at the first available opportunity permit the alleged violator to appear personally, but not through counsel or others, * * * and explain the alleged violation ” (Correction Law, § 218, now § 212, subd. 7).

Accordingly, agreeing that fairness would suggest a change in parole revocation procedure, but rejecting, emphatically, that an issue of constitutional dimension arises, exposed at long last by a bare majority of the court, which mandates the first of what will inevitably be a progression of judicial extensions, I dissent and vote to affirm the judgment dismissing the proceeding.

Judges Burke, Bergan and Gibson concur with Chief Judge Fuld; Judge Scileppi dissents and votes to affirm in an opinion in which Judge Breitel concurs in a separate opinion, and in both of which opinions Judge Jasen concurs.

Judgment reversed, without costs, and matter remitted to Supreme Court, Dutchess County, for further proceedings in accordance with the opinion herein.

* In 1969 the 12-man Board of Parole, required by statute to sit as panels of three members each, held 18,381 “hearings”, of which 3,213 were first hearings following parole violations (Correction Law, § 6, subd. 1; id., former § 218, now § 212, subd. 7; Fortieth Annual Report of the Division of Parole of the Executive Department [N. Y. Legis. Doc., 1970, No. 98], pp. 4-5,13, and Tables 1 and II). Of 4,274 parolees declared delinquent in that year, 969 had committed “ technical violations ” of the terms of parole (id., Tables 22 and VIII). The board in 1951 contained only five members but the number was progressively increased to its present size (Executive Law, § 241 prior to repeal by L. 1970, ch. 475; see L. 1960, ch. 351; L. 1962, ch. 549; L. 1963, ch. 207; L. 1967, ch. 324, § 2). The effect of the rule in this case on parole revocations arising from convictions for misdemeanors, particularly in New York City, is indeterminate.