Opinion
July 17, 1990
Appeal from the Supreme Court, Bronx County (Burton Hecht, J.).
Petitioner was originally convicted in Bronx Supreme Court and sentenced to two concurrent indeterminate prison terms of 6 to 18 years on April 10, 1975, for robbery in the first degree and burglary in the first degree. He was subsequently paroled on February 7, 1988. On March 8, 1988, a parole violation warrant was issued against petitioner for alleged violations of his parole. Petitioner was taken into custody on March 23, 1988, and he waived his preliminary hearing. A final revocation hearing was scheduled for April 27, 1988. Following several adjournments, the hearing was convened and concluded on July 5, 1988.
Petitioner thereafter moved for a writ of habeas corpus alleging that he had not been afforded a final parole revocation hearing within 90 days of the waiver of his preliminary hearing as required by the Executive Law (see, Executive Law § 259-i [f] [i]). The IAS court dismissed the writ since the evidence indicated that petitioner received a timely hearing.
Petitioner's contention that the Division of Parole violated his right to receive a hearing within the prescribed 90 days is without merit. Indeed, the evidence demonstrates that of the 104 days between the preliminary hearing on March 23, 1988 and the final hearing on July 5, 1988, petitioner is chargeable with at least 15 days. Consequently, the Division of Parole is chargeable, at most, with 89 days.
Concur — Kupferman, J.P., Carro, Asch, Smith and Rubin, JJ.