Opinion
November 15, 1985
Appeal from the Supreme Court, Wyoming County, McCarthy, J.
Present — Dillon, P.J., Doerr, O'Donnell, Pine and Schnepp, JJ.
Judgment unanimously affirmed. Memorandum: A parolee has the right to counsel upon a final parole revocation hearing (People ex rel. Menechino v Warden, 27 N.Y.2d 376). While even a represented parolee may waive that right in the absence of counsel (People ex rel. Cleveland v New York State Div. of Parole, 110 A.D.2d 671; People ex rel. Martinez v Walters, 99 A.D.2d 476, 477, appeal dismissed 63 N.Y.2d 727; see, People ex rel. Racona v Hammock, 115 A.D.2d 306), such waiver is not effective unless knowingly, intelligently and voluntarily made (see, People v White, 56 N.Y.2d 110; People v McIntyre, 36 N.Y.2d 10; People ex rel. Martinez v Walters, supra). Here, the administrative officer presiding at the final parole revocation hearing made no inquiry to determine whether relator understood the advantages of being represented by counsel or the disadvantages of proceeding pro se. There was, therefore, no basis in the record for a determination that relator's waiver of his right to counsel was knowing, intelligent and voluntary.