Opinion
December 10, 1987
Appeal from the Supreme Court, Saratoga County (Ford, J.).
Petitioner contends that the Parole Board's use against him of clause (iii) of Executive Law § 259-i (3) (d), which became effective June 19, 1984 and provides for the automatic revocation of parole where a parolee is convicted of a new felony, was in violation of the ex post facto prohibition of the US Constitution (US Const, art I, § 10, cl 1). Specifically, petitioner argues that he should have been afforded a final parole revocation hearing before his parole was revoked. In order for a criminal or penal statute to be ex post facto, it must be both retrospective and it must disadvantage the offender affected by it (Weaver v Graham, 450 U.S. 24, 29; Matter of Ristau v Hammock, 103 A.D.2d 944, 945, lv denied 63 N.Y.2d 608).
While it is not clear whether the constitutional proscription against ex post facto laws applies to the administration of parole (see, Portley v Grossman, 444 U.S. 1311, 1312; Di Napoli v Northeast Regional Parole Commn., 764 F.2d 143, 146, cert denied 474 U.S. 1020), we find that, in any event, petitioner has failed to establish that he was disadvantaged by the change in the law. It is uncontested that shortly after his release on parole, petitioner was arrested and charged with two felonies. His later plea of guilty to the commission of two felonies established that he had clearly violated the terms of his parole. A parolee's conviction of a crime while on parole is sufficient, in and of itself, to support a revocation of parole and a new inquiry is hardly necessary (see, People ex rel. Maggio v Casscles, 28 N.Y.2d 415, 418; People ex rel. Ellington v Zelker, 39 A.D.2d 757, lv denied 30 N.Y.2d 488; People ex rel. Sardo v Zelker, 38 A.D.2d 569). Thus, even assuming that the law was applied retrospectively to petitioner, it did not disadvantage him. Hence, the writ of habeas corpus was properly dismissed.
Petitioner's remaining contentions have been considered and found unpersuasive.
Judgment affirmed, without costs. Kane, J.P., Casey, Weiss, Mikoll and Harvey, JJ., concur.