Opinion
January 3, 1984
In a habeas corpus proceeding, the appeal is from a judgment of the Supreme Court, Westchester County (Nicolai, J.), dated October 28, 1982, which granted petitioner's application and ordered that he be discharged from custody and restored to parole. Judgment reversed, on the law, without costs or disbursements, and petition dismissed. Clearly, a parolee has a right to counsel at a final parole revocation hearing (Executive Law, § 259-i, subd 3, par [f], cl [v]; People ex rel. Menechino v Warden, 27 N.Y.2d 376, 383), but that right may be waived ( People ex rel. McFadden v New York State Bd. of Parole, 79 A.D.2d 952, app. dsmd. 54 N.Y.2d 751; People ex rel. Lawrence v Smith, 50 A.D.2d 1073, mot. for lv. to app den. 38 N.Y.2d 710). Upon our review of the record, we find that the waiver here was knowing, intelligent and voluntary. The hearing officer carefully explained to petitioner what his rights were and what the consequences of a waiver would be. The record makes it clear that petitioner embarked on that course and that he did so with his eyes open (see People ex rel. Brannaka v Hammack, 65 A.D.2d 840; People ex rel. Coleman v Smith, 56 A.D.2d 734; People ex rel. Clanton v Smith, 51 A.D.2d 873, mot. for lv. to app den. 39 N.Y.2d 706; People ex rel. Lawrence v Smith, supra; cf. Matter of Schwartz v Warden, 82 A.D.2d 870, app withdrawn 55 N.Y.2d 749; Matter of Jackson v Hammock, 82 A.D.2d 888). The contention that a waiver may not be made in the absence of counsel is not persuasive. The analogy to cases like People v Hobson ( 39 N.Y.2d 479) is inapt. Hobson ( supra), and its progeny, interdict questioning by law enforcement personnel once an attorney has entered the criminal proceedings, unless the waiver is made in the attorney's presence. That rule does not apply 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 is similarly 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). Moreover, even if the waiver were ineffective, the appropriate corrective action would be to direct a new hearing, not restoration to parole ( People ex rel. Martinez v New York State Bd. of Parole, 56 N.Y.2d 588). We also note that while petitioner's counsel complains that the record on appeal is incomplete, we are bound by the record as certified because he failed to move to correct the record and we cannot consider the ex parte statements contained in his brief ( Saraceno v Piscopo, 16 A.D.2d 735). In any event, the material in question would not properly be part of the record, since a reviewing court is limited to the material adduced before the agency and there is no power to engage in de novo fact finding ( Matter of Fanelli v New York City Conciliation Appeals Bd., 58 N.Y.2d 952, affg 90 A.D.2d 756; People ex rel. Rosenthal v Wolfson, 48 N.Y.2d 230; Matter of Levine v New York State Liq. Auth., 23 N.Y.2d 863). Hence, the omissions of which the petitioner complains are irrelevant. Mollen, P.J., Titone, O'Connor and Niehoff, JJ., concur.