Opinion
January 14, 1977
Appeal from the Wyoming Supreme Court.
Present — Marsh, P.J., Cardamone, Simons, Dillon and Witmer, JJ.
Judgments unanimously reversed and petition dismissed, without costs. Memorandum: Relator was convicted of two counts of robbery, second degree, as a second felony offender, in 1966 and sentenced to concurrent terms of 12 to 20 years imprisonment. He was paroled on March 27, 1974 and received permission to go to Virginia to live. While in Virginia he was arrested in May, 1975 and later pleaded guilty to the misdemeanors of attempted rape and aggravated assault in full satisfaction of two felony charges alleging the same offenses. He was sentenced to consecutive nine-month terms on the two offenses and on September 18, 1975 New York filed a detainer warrant with the Virginia authorities. Upon his return to New York in May, 1976, he was served with charges which alleged that he had violated parole by failing to lead a law-abiding life by committing the crimes above stated. A revocation hearing was scheduled and adjourned at relator's request. He then brought this habeas corpus proceeding alleging that his rights had been violated because of the failure to hold a preliminary hearing. He does not dispute the conviction, and the only witness from Virginia whom he deems important on the preliminary hearing is his brother, who was not a witness to the crimes. Under the circumstances respondent was not required to return relator to Virginia for a preliminary hearing to determine whether there were probable grounds to believe that relator violated the terms of his parole or, in default thereof, to release him as ordered by Special Term (see 7 NYCRR 1920.20), nor were the relator's due process rights violated (Matter of Mullins v State Bd. of Parole, 43 A.D.2d 382; People ex rel. Kendrick v Flood, 43 A.D.2d 964; Matter of Mathis v Henderson, 42 A.D.2d 1029, and see Moody v Doggett, ___ US ___).