Summary
In Matter of Burke v Ward (53 A.D.2d 748, mot for lv to app den 40 N.Y.2d 801) this court held that where a parolee is already serving a sentence for a new offense, a prompt hearing was not necessary.
Summary of this case from Dubay v. Le FevreOpinion
June 10, 1976
Appeal from a judgment of the Supreme Court at Special Term, entered November 6, 1975 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to compel respondents to withdraw all detainers lodged with Federal authorities and dismiss all parole revocation proceedings. On June 4, 1962 petitioner was sentenced to a 15- to 30-year term for robbery, and on July 11, 1962 petitioner was sentenced to a term of 7 1/2 to 15 years for robbery, said sentences to run concurrently in New York State prisons. He was released on parole in August of 1972 and, with permission of parole authorities, moved to California where he came under the supervision of the California Department of Correction. While on parole in 1973, petitioner was arrested by Federal authorities for bank robbery in California. On his conviction on October 11, 1973 he was sentenced to two 20-year terms, to run concurrently. Respondents declared petitioner delinquent as of June 26, 1973, the date of the robbery, terminated his parole without a hearing as of that date and, on April 1, 1974, filed a warrant of detainer with the Federal authorities at Leavenworth, Kansas. Petitioner has not been granted a parole revocation hearing despite his request. The issue is whether the parole board is required to afford a parolee a prompt revocation hearing pursuant to Morrissey v Brewer ( 408 U.S. 471), where the basis of revocation is an intervening Federal conviction. On facts essentially the same as those in the instant case, this court has held that "nothing in the applicable statutes or the decision of the Supreme Court in Morrissey v. Brewer [supra] would mandate a prompt revocation hearing when a parolee is already serving a sentence of imprisonment following conviction for a new offense" (Matter of Mullins v State Bd. of Parole, 43 A.D.2d 382, 383, app dsmd as moot 35 N.Y.2d 992; see Matter of Beattie v New York State Bd. of Parole, 39 N.Y.2d 445; People ex rel. Nance v Board of Parole, 53 A.D.2d 739; Sims v Preiser, 50 A.D.2d 983, mot for lv to app den 39 N.Y.2d 707; People ex rel. Schmidt v La Vallee, 48 A.D.2d 730, app dsmd as moot 39 N.Y.2d 886; People ex rel. Voigt v Regan, 47 A.D.2d 694). Judgment affirmed, without costs. Koreman, P.J., Kane, Mahoney, Larkin and Reynolds, JJ., concur.