Opinion
May 25, 1972
Appeal from the Erie County Court.
Present — Goldman, P.J., Del Vecchio, Gabrielli, Moule and Henry, JJ.
Judgment unanimously reversed on the law and petition and writ dismissed without costs. Memorandum: Respondent appeals from a judgment of Erie County Court which on return of a writ of habeas corpus released relator on bail pending a parole revocation hearing. Relator, a paroled prisoner, was in custody pursuant to a Parole Board warrant for retaking and detaining him issued in accordance with the provisions of section 216 Correct. of the Correction Law. ¶ Appellant contends that the court lacked authority to release an alleged parole violator on bail. "The subject of bail is one which, in this State, is regulated by statute, the court having only such authority to direct the release of a prisoner upon bail and to accept recognizance as is granted by statute" ( People v. Wirtschafter, 305 N.Y. 515, 519). In People ex rel. Little v. Monroe ( 38 A.D.2d 398, 399) the Second Department, in deciding that a prisoner held on a parole detainer warrant is not entitled to bail, said, "The CPL has carefully delineated the right to bail. * * * The terms under which bail shall be granted are clearly stated in the statute. (see CPL 510.20, 530.10 Crim. Proc., 530.40 Crim. Proc.)". The court found that such provisions authorized release on bail only in a criminal action or proceeding and that a parole revocation proceeding is not a criminal action or proceeding and said, "We are of the opinion that the relator is not entitled either to bail or to release; and we dismiss the petition and the writ." We hold that the County Court lacked authority to release relator on bail.