Opinion
April 1, 1985
Appeal from the Supreme Court, Westchester County (Delaney, J.).
Appeal dismissed as moot, without costs or disbursements.
The issue raised on this appeal has been rendered moot by the Parole Board's subsequent determination to release petitioner to parole supervision. Nevertheless, we take this opportunity to note that Special Term erred in holding that a parolee who requests the assistance of counsel prior to a final parole revocation hearing cannot, in the absence of counsel, effectively waive the right to counsel on the date of the hearing. People v Skinner ( 52 N.Y.2d 24) and People v. Cunningham ( 49 N.Y.2d 203), relied upon by Special Term, involved the use of confessions in criminal proceedings obtained from defendants who had invoked a right to counsel. As we explained in People ex rel. Martinez v Walters ( 99 A.D.2d 476, 477, appeal dismissed 63 N.Y.2d 727), these authorities are inapplicable "to waivers made to judicial officers (see People v. White, 56 N.Y.2d 110, 117-119; United States v. Mohabir, 624 F.2d 1140, 1153) and [are] * * * out of place in parole revocation proceedings which are not a stage of the criminal prosecution (see Matter of Utsey v. New York State Bd. of Parole, 89 A.D.2d 965, 966-967; cf. Matter of Di Marsico v Whalen, 49 N.Y.2d 822, affg 68 A.D.2d 971, 972)". Titone, J.P., O'Connor, Rubin and Lawrence, JJ., concur.