The validity of the regulation is important both to parole administrators and to parolees. Hence, the appeal should not be dismissed as moot ( People exrel. Calloway v. Skinner, 33 N.Y.2d 23, 30, n. 1; Matter of Gold v. Lomenzo, 29 N.Y.2d 468, 476; Cohen and Karger, Powers of the New York Court of Appeals 420-421). People ex rel. Menechino v. Warden ( 27 N.Y.2d 376) held that under the State and Federal Constitutions parolees were entitled to offer evidence and to have the assistance of counsel at parole revocation hearings.

The majority rule with respect to bail pending revocation of parole, in the absence of statute providing for that opportunity, is that there is no authority for a court to order release when bail is sought by a parolee. See, e.g., Aguilera v. California Department of Corrections, 247 Cal.App.2d 150, 55 Cal.Rptr. 292 (1966); People ex rel. Tucker v. Kotsos, 68 Ill.2d 88, 11 Ill.Dec. 295, 368 N.E.2d 903 (1977); People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 347 N.Y.S.2d 178, 300 N.E.2d 716 (1973); Hardy v. Warden of Queens House of Detention for Men, 56 Misc.2d 332, 288 N.Y.S.2d 541 (N.Y.Sup. 1968); January v. Porter, 75 Wn.2d 768, 453 P.2d 876 (1969); Ogden v. Klundt, 15 Wn. App. 475, 550 P.2d 36 (1976); Gaertner v. State, 35 Wis.2d 159, 150 N.W.2d 370 (1967). See also, N. Cohen J. Gobert, The Law of Probation and Parole § 9.03, at 417-20 (1983).

He asks the court to prohibit the parole authorities from returning him to prison "and/or" to admit him to bail. As the court informed relator in denying his previous habeas corpus application (of May 5, 1976), there is no authority for bail for parolees who are arrested and incarcerated pending parole violation hearings (People ex rel. Calloway v Skinner, 33 N.Y.2d 23, 33).

In People ex rel. Calloway v. Skinner, infra, both the majority and minority opinions assumed that under Morrissey the requirement for a local hearing would apply only to the "preliminary hearing" to determine probable cause. 33 N.Y.2d at 34-35, 36. 347 N.Y.S.2d 178, 300 N.E.2d 716. II

It seems to us self-evident that failure to comply with the October 11, 1980 order of the Clinton County Supreme Court presents a question of fact as to whether plaintiff was deprived of his liberty without due process of law. We conclude, moreover, as a matter of law, that plaintiff was deprived of the right to counsel assured him by the federal and state constitutions under the doctrine enunciated in Gagnon v. Scarpelli (1973) 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, as foreshadowed by Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and People ex rel. Menechino v. Warden (1971) 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238, as modified and amplified by People ex rel. Calloway v. Skinner (1973) 33 N.Y.2d 23, 347 N.Y.S.2d 178, 300 N.E.2d 716, and by procedures promulgated by the Division of Parole. We cannot on the record before us determine whether defendants' behavior in fact amounted to violation of that order, or whether plaintiff waived such violation, if it occurred.

Where the outpatient's conduct, or external factors, are equivocal or have only a tangential relationship to the medical problems of the patient then both a preliminary and final hearing are required before reconfinement may be ordered. The procedures then are substantially the same as for parole revocation, including, among other things, written notice, disclosure of evidence, and the opportunity to offer evidence (cf. Morrissey v Brewer, 408 U.S. 471, 484-490, supra; People ex rel. Calloway v Skinner, 33 N.Y.2d 23). In such case, like parolees, outpatients are entitled to counsel at the final hearing, and, in the discretion of the Drug Addiction Control Commission to counsel at the preliminary hearing (cf. Peopleex rel. Menechino v Warden, 27 N.Y.2d 376, 383; People ex rel. Calloway v Skinner, 33 N.Y.2d 23, 32, supra).

r jurisdictions. See e.g. Faheem-El v. Klincar, 841 F.2d 712 (7th Cir. 1988), reversing 620 F. Supp. 1308 (N.D.Ill. 1985); Luther v. Molina, 627 F.2d 71, 76 n. 10 (7th Cir. 1980); Galante v. Warden,Metro. Cor. Ctr., 573 F.2d 707, 708 (2nd Cir. 1977); Argo v.United States, 505 F.2d 1374, 1377 (2nd Cir. 1974); In reWhitney, 421 F.2d 337, 338 (1st Cir. 1970); Siegel v. U.S.Parole Com'n, 613 F. Supp. 127, 128 (S.D.Fla. 1985); Robin v.Thomas, 555 F. Supp. 849, 852 (S.D.N.Y. 1983); Lee v.Pennsylvania Board of Probation and Parole, 467 F. Supp. 1043, 1046-47 (E.D.Pa. 1979); Burgess v. Roth, 387 F. Supp. 1155, 1162 (E.D.Pa. 1975); Martin v. State, supra; Liistro v. Robinson,supra; Genung v. Nuckolls, 292 So.2d 587, 588 (Fla. 1974) (parole); Bernhardt v. State, 288 So.2d 490, 497 (Fla. 1974) (probation), reaffirmedMiller v. Toles, 442 So.2d 177, 179 (Fla. 1983) (probation and parole); People ex rel. Tucker v. Kotsos, supra; State v.Garcia, 193 N.J.Super. 334, 337-38, 474 A.2d 20, 21-22 (1984); People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 33-34, 347 N.Y.S.2d 178, 184, 300 N.E.2d 716, 720 (1973). Although the above jurisdictions agree that a parolee has no right to release on bail pending resolution of parole revocation proceedings, they are divided as to whether and under what conditions bail may be granted as a discretionary act by the trial court.

The respondent concedes that petitioner did not have a preliminary hearing but contends that since petitioner was convicted of a crime committed while on parole, a new revocation hearing would be inappropriate and would be a useless act ( People ex rel. Maggio v. Casscles, 28 N.Y.2d 415). Respondent argues that having had a formal revocation hearing and petitioner having admitted, as did his counsel upon argument, that he was validly convicted of the crime in Ohio, the failure to grant a preliminary hearing is a moot matter, for the hearing would in no manner have benefitted petitioner after having been found in violation of his parole after a formal hearing. We agree with that position ( Matter ofRichardson v. New York State Board of Parole, 41 A.D.2d 179, affd. 33 N.Y.2d 23). Consonant with the principle enunciated in Morrissey, we believe that preliminary hearings should be had at the earliest possible date. We are constrained to repeat that in the posture of the case before us, however, a preliminary hearing could in no way have assisted the petitioner.

As noted hereinabove, Morrissey was handed down on June 29, 1972, which was subsequent to the detention of the relators for violation of parole and declaration of delinquency but prior to the notification of charges and hearings. In the case of People ex rel. Calloway v. Skinner ( 33 N.Y.2d 23 [July 3, 1973]), the Court of Appeals has held that where the declaration of delinquency occurs prior to June 29, 1972 (the effective date of Morrissey v. Brewer, supra) Morrissey is inapplicable. Accordingly, the provision of Morrissey as to a preliminary hearing is inapplicable to the present cases.

The preliminary hearing is "intended to be informal and summary in nature, with only a 'minimal inquiry' necessary to determine whether there is probable cause or reasonable grounds to believe that the parolee has committed acts that would constitute a violation of parole conditions." People ex rel. Calloway v. Skinner, 33 N.Y.2d 23,31 (1973).