Opinion
April 3, 1978
In a habeas corpus proceeding, the appeal is from a judgment of the Supreme Court, Dutchess County, dated October 15, 1977, which, inter alia, directed that petitioner be restored to parole. Judgment reversed, on the law, without costs or disbursements, proceeding dismissed, and petitioner is directed to surrender himself to the Warden of the Green Haven Correctional Facility. Contrary to Special Term's determination, we hold that (1) the hearing officer properly determined, before deciding not to await the presence of counsel at the preliminary parole revocation hearing, that petitioner adequately understood the charges against him and was sufficiently articulate to explain his conduct and (2) the reasons for the decision to proceed without counsel were adequately set forth in the record. In addition, the record does not indicate that any facts which could have been presented in mitigation of the violations were too difficult or complex for petitioner to develop without the aid of counsel. Certainly, at that stage in the proceeding, it was not an abuse of discretion to find that counsel would not have had an impact on the determination that petitioner be held for a final revocation hearing (see Gagnon v Scarpelli, 411 U.S. 778, 790-791; People ex rel. Calloway v Skinner, 33 N.Y.2d 23). Latham, J.P., Damiani and Hawkins, JJ., concur; O'Connor, J., dissents and votes to affirm the judgment, with the following memorandum:
In the light of petitioner's representations that there were substantial reasons which mitigated against his technical violations, that revocation would have been inappropriate in view of those reasons and that, without the aid of counsel, he could not adequately develop the difficult circumstances for the hearing officer, it was an abuse of discretion to deny his request to await counsel.