prompt final parole revocation hearing in New York

1984It is by now settled law in this State that: “A parolee is entitled to a prompt final parole revocation hearing notwithstanding the circumstance that he is in the physical custody of the authorities of a sister State unless the Board of Parole shows that such a hearing cannot be held subject to its convenience and practical control.” (Gonzales v Dalsheim, 52 NY2d 9, 12 .) In the present case, it is clear that the New York parole authorities had control over the person of the petitioner to the extent that the Florida authorities agreed to conduct a preliminary hearing as agents for this State.

1983Gonzales v Dalsheim ( 52 NY2d 9 , supra) in order to relieve the parole authorities of their duty to provide a prompt final parole revocation hearing.

1979Walsh v Vincent ( 40 NY2d 1049, 1050 ) and Matter of Beattie v New York State Bd. of Parole ( 39 NY2d 445 ), relied on by the majority were pre Executive Law (§ 259) cases, decided when the standard to be applied was "a prompt final parole revocation hearing”.

1976Since relator has received a parole eligibility hearing it is now academic that he did not receive, as he should have, a prompt final parole revocation hearing (see Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445 ).

1979Walsh v Vincent ( 40 NY2d 1049, 1050 ) and Matter of Beattie v New York State Bd. of Parole ( 39 NY2d 445 ), relied on by the majority were pre Executive Law (§ 259) cases, decided when the standard to be applied was "a prompt final parole revocation hearing”.

1977Walsh v Vincent (supra), which requires a prompt final parole revocation hearing even though the violation of parole may have involved the commission of another crime, rather than Moody v Daggett (— US — [ 45 USLW 4017 ]), is controlling in New York State.

1985Levy v Dalsheim, 66 AD2d 827 , affd 48 NY2d 1019 ; People ex rel.

1985Levy v Dalsheim, supra; People ex rel.

1982Walsh v Vincent, supra, p 1050) attention must now be directed to the holding of this court on October 22, 1979 in Matter of Higgins v New York State Div. of Parole ( 72 AD2d 583 ).

1982(Matter of Higgins v New York State Div. of Parole, 72 AD2d 583 ; see People ex rel.

1982It held as follows (p 1050): “In the absence of a showing by the correctional or parole authorities that a particular local facility in the State is, for strong practical reasons, beyond its convenience and control, a situation difficult to bring to mind, a parolee is entitled to a prompt final parole revocation hearing.” The net effect of Walsh was that the majority of the court had rejected the rule expressed in Moody v Daggett ( 429 US 78 , supra), which held that a prisoner was entitled to his final revocation hearing only upon his return to the State correctional facility.

1982Walsh v Vincent (supra), which requires a prompt final parole revocation hearing even though the violation of parole may have involved the commission of another crime, rather than Moody v Daggett ( 429 US 78 [ 45 USLW 4017 ]), is controlling in New York State.” In the course of the ever-expanding body of law pertaining to the right of an individual paroled from a New York penal institution to a parole revocation hearing, while thereafter imprisoned in a Federal or foreign State correctional facility, vis-a-vis, whether, under such circumstances, said parolee was “ ‘subject to the convenience a

1985Levy v Dalsheim, 66 AD2d 827 , affd 48 NY2d 1019 ; People ex rel.

1977It is well established that a parolee who is convicted for the commission of a crime while on parole must serve the minimum period of the new sentence before he can be eligible for parole (Matter of McDougal v Vincent, 51 AD2d 737 ).

1977It is relator’s contention that the mandate of Morrissey v Brewer ( 408 US 471 ) for a prompt final parole revocation hearing is also a mandate for a complete hearing and that the failure of the board to make a time assessment determination as part of its decision revoking parole is a violation of due process guarantees set forth in Morrissey From the record before the court, it is clear that the hearing held on July 21, 1976 was a final revocation hearing, and as such, the Board of Parole was obligated to follow its own rules, and in particular, 7 NYCRR 1925.35 (k) (2) (i).

1977Menachino v Warden, Green Haven State Prison, 27 NY2d 376, 379 ; People ex rel.