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People ex rel. Calloway v. Skinner

33 N.Y.2d 23 Court N.Y. Decision date 1973-07-03 English

Decision Majority — *30 Jasen, J. · Dissent — Chief Judge Fuld,

Contents

Majority

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The People of the State of New York ex rel. Leticia Calloway, Appellant, v. Albert Skinner, as Monroe County Sheriff, Respondent. The People of the State of New York ex rel. Janet Robinson, Appellant, v. Albert Skinner, as Monroe County Sheriff, Respondent. In the Matter of Clifford Stephens, Respondent, v. Philip J. Hirsch, as Commissioner, New York State Division of Parole, Appellant. In the Matter of Melvin Richardson, Appellant, v. New York State Board of Parole, Respondent.
Argued June 8, 1973;
decided July 3, 1973.
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Nicholas P. Varlan, Public Defender (Leslie A. Bradshaw of counsel), for appellants in the first and second above-entitled proceedings.
I. Habeas corpus is a proper remedy to test parole revocation procedures. (People ex rel. Warren v. Mancusi, 70 Misc 2d 90 , 40 A D 2d 279 ; People ex rel. Combs v. La Vallee, 29 A D 2d 128 ; People ex rel. Menechino v. Warden, 27 N Y 2d 376 ; People ex rel. Maggio v. Casscles, 28 N Y 2d 415 ; People ex rel. Silbert v. Cohen, 29 N Y 2d 12 .) H. The decision below is reviewable notwithstanding petitioners’ release from confinement. (People ex rel. Wilder v. Markley, 26 N Y 2d 648 ; Carafas v. La Vallee, 391 U. S. 234 ; People ex rel. Brown v. Johnston, 9 N Y 2d 482 ; People ex rel. La Belle v. Harriman, 35 A D 2d 13 ; People ex rel. Meltsner v. Follette, 32 A D 2d 389 .) III. The appeal should not be dismissed as moot. The issues are important, recurrent, and in need of immediate resolution. The Parole Board should not be permitted to manipulate which issues it permits this court to determine. (Matter of Bell v. Waterfront Comm, of N. Y. Harbor, 20 N Y 2d 54 ; East Meadow Community Concerts Ass n. Board of Educ. of Union Free School Dist. No. 3, 18 N Y 2d 129 ; Matter of Rosenbluth v. Finkelstein, 300 N. Y. 402 ; Matter of Lyon Co. v. Morris, 261 N. Y. 497 ; People ex rel. Maggio v. Casscles, 28 N Y 2d 415 ; People v. Wirtschafter, 305 N. Y. 515 ; People ex rel. Warren v. Mancusi, 70 Misc 2d 90 , 40 A D 2d 279 ; People ex rel. Angell v. Lynch, 71 Misc 2d 921 ; Parker v. Ellis,
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362 U. S. 574 .) IV. Morrissey is applicable to any parolee whose parole had not been revoked before June 29, 1972, even though arrested before that date. (Morrissey v. Brewer, 408 U. S. 471 ; Richardson v. New York State Bd. of Parole, 71 Misc 2d 36 ; Goldberg v. Kelly, 397 U. S. 254 ; Johnson v. New Jersey, 384 U. S. 719 , 385 U. S. 890 ; Jenkins v. Delaware, 395 U. S. 213 .) V. Denial of the right to counsel at preliminary parole revocation hearing violates due process. (People ex rel. Menechino v. Warden, 27 N Y 2d 376 ; People ex rel. Cavalluzzo v. Warden, N. Y. City Correctional Inst, for Men, 39 A D 2d 897 ; United States ex rel. Bey v. Connecticut State Bd. of Parole, 443 F. 2d 1079 ; Mempa v. Rhay, 389 U. S. 128 ; Goldberg v. Kelly, 397 U. S. 254 ; Specht v. Patterson, 386 U. S. 605 ; In re Gault, 387 U. S. 1 ; Powell v. Alabama, 287 U. S. 45 ; Low Wah Suey v. Backus, 225 U. S. 460 ; Nason v. Immigration & Naturalization Serv., 370 F. 2d 865 .) VI. Probable cause based solely on uncorroborated hearsay and without production of witnesses for cross-examination violates rights of confrontation and due process. (Matter of Wighall v. Fletcher, 278 App, Div. 28 , 303 N. Y. 435 ; Matter of Stammer v. Board of Regents of Univ. of State of N. Y., 287 N. Y. 359 ; Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435 .) VII. TJntimeliness of notice of preliminary hearing was prejudicial. VIII. Parole cannot be revoked because of trivial violations. (New York City Housing Auth. v. Knowles, 200 Misc. 156 ; Matter of Cherry v. Board of Regents of Univ. of State of N. Y., 289 N. Y. 148 ; Matter of Federal Tel. & Radio Corp. [Corsi], 301 N. Y. 95 ; Arthurs v. Regan, 69 Misc 2d 363 .) IX. Right of parolee declared delinquent to continue at liberty is protected by due process. (Matter of Hardy v. Warden, 56 Misc 2d 332 .) X. Court has inherent power under habeas corpus to grant bail. (People ex rel. Shapiro v. Keeper of City Prison, 90 N. Y. 393 ; People v. Tweed, 5 Hun 382 , 63 N. Y. 202 ; Matter of Donnelly [Kuney-Sauter], 168 Misc. 285 , affd. sub nom. People ex rel. Kuney v. Adams, 256 App. Div 802 , 280 N. Y. 79 4 ; People v. Trowbridge, 305 N. Y. 471 .)
Louis J. Lefkowitz, Attorney-General (Frederick R. Walsh and Jean M. Coon of counsel), for respondent in the first and second above-entitled proceedings.
I. Although this court could consider the appeals to be moot because appellant Calloway was
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released on parole on April 2,1973 and appellant Robinson was discharged for maximum expiration of her sentence on February 20,1973, respondent does not urge this upon the court. (People ex rel. La Belle v. Harriman, 35 A D 2d 13 ; People ex rel. La Bar v. Wilkms, 18 N Y 2d 894 ; People ex rel. Brown v. New York State Bd. of Parole, 17 N Y 2d 809 ; People ex rel. Wilder v. Markley, 26 N Y 2d 648 ; People ex rel. Burley v. Agnew, 28 N Y 2d 551 ; People ex rel. Yacobellis v. McKendrick, 28 N Y 2d 486 ; People ex rel. Langdon v. Mancusi, 25 N Y 2d 895 ; People ex rel. Winn v. Denno, 25 N Y 2d 914 ; People ex rel. Fuca v. Correction Dept, of State of N. Y., 29 N Y 2d 551 ; United States ex rel. Bradford v. Thompson, 185 F. 2d 1021 .) II. There is no constitutional right to counsel in a preliminary parole revocation hearing. (People ex rel. Little v. Monroe, 38 A D 2d 398 .) III. Appellant Calloway was not entitled to a preliminary parole revocation hearing since her revocation of parole occurred on June 23, 1972. The Parole Board determined that her date of delinquency was retroactive to June 23, 1972, her date of violation, and this preceded the Morrissey decision of June 29, 1972. Further, appellant Robinson was not entitled to a preliminary parole revocation hearing since her revocation of parole occurred on June 9, 1972. The Parole Board determined that her date of delinquency was retroactive to June 9,1972, her date of violation, and this preceded the Morrissey decision of June 29, 1972. (People ex rel. Van Burkett v. Montayne, 70 Misc 2d 907 ; Morrissey v. Brewer, 408 U. S. 471 ; People ex rel. Menechino v. Warden, 27 N Y 2d 376 ; Griffin v. California Adult Auth., 464 F. 2d 602 ; M’Clary v. California Adult Auth., 466 F. 2d 1122 ; People ex rel. Petite v. Follette, 24 N Y 2d 60 .) IV". No further relief is required since appellants have received the preliminary parole violation hearing mandated by the intermediate order and it was decided that grounds existed for appellants’ detention for parole revocation hearings and, since both appellants received full parole revocation hearings, there is no necessity for a preliminary hearing. V. The technical parole violations which were admitted by appellants justified continued detention for parole revocation hearings. VI. Appellants had no right to bail while awaiting any hearing
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concerned with parole revocation. (People ex rel. Gatti v. Amico, 39 A D 2d 826 , 30 N Y 2d 955 ; People ex rel. Little v. Monroe, 38 A D 2d 398 ; People v. Wirtschafter, 305 N. Y. 515 .)
Louis J. Lefkowits, Attorney-General (Hillel Hoffman, Irving Galt and Joel Lewittes of counsel), for appellant in the third above-entitled proceeding.
Neither the United States Constitution nor the New York State Constitution requires the assistance of counsel at a preliminary hearing to determine whether there is probable cause to believe that a parolee has violated the terms of his release. (Morrissey v. Brewer, 408 U. S. 471 ; Matter of Richardson, 71 Misc 2d 36 , 41 A D 2d 179 ; Goldberg v. Kelly, 397 U. S. 254 ; Argersinger v. Hamlin, 407 U. S. 25 ; People ex rel. Menechino v. Warden, 27 N Y 2d 376 ; People ex rel. Maggio v. Casscles, 28 N Y 2d 415 .)
Eugene Murphy, James J. McDonough and Matthew Muraskin for respondent in the third above-entitled proceeding.
Respondent was entitled to the assistance of counsel at his preliminary parole revocation hearing. (Morrissey v. Brewer, 408 U. S. 471 ; People ex rel. Brown v. Board of Supervisors of Onondaga, 4 N. Y. Crim. Rep. 102 , 102 N. Y. 691 ; People ex rel. Menechino v. Warden, 27 N Y 2d 376 ; People ex rel. Silbert v. Cohen, 29 N Y 2d 12 ; Matter of Ella B., 30 N Y 2d 352 ; People ex rel. Little v. Monroe 38 A D 2d 398 .)
Joel Berger and William E. Hellerstein for appellant in the fourth above-entitled proceeding.
I. The issues of this case are • not moot as to appellant Melvin Richardson. (Morrissey v. Brewer, 408 U. S. 471 ; Sibron v. New York, 392 U. S. 40 ; Carafas v. La Vallee, 391 U. S. 234 .) II. An alleged parole violator is entitled to representation by counsel at preliminary hearings held pursuant to Morrissey v. Brewer. (People ex rel. Menechino v. Warden, 27 N Y 2d 376 ; People ex rel. Silbert v. Cohen, 29 N Y 2d 12 ; People ex rel. Little v. Monroe, 38 A D 2d 398 ; Argersinger v. Hamlin, 407 U. S. 25 ; Coleman v. Alabama, 399 U. S. 1 .) III. Morrissey v. Brewer requires that preliminary hearings for alleged parole violators who were arrested in New York City and whose alleged violations occurred there be conducted within New York City. IV. Morrissey v. Brewer is
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applicable to parolees whose revocation proceedings were still pending on the date Morrissey was decided. (United States v. Wade, 388 U. S. 218 ; Stovall v. Denno, 388 U. S. 293 ; Baldwin v. New York, 399 U. S. 66 .)
Louis J. Lefkowitz, Attorney-General (Hillel Hoffman, Joel Lewittes and David Berman of counsel), for respondent in the fourth above-entitled proceeding.
I. Morrissey v. Brewer ( 408 U. S. 471 ) does not require the Board of Parole to afford a parolee a preliminary hearing on the question of parole violation, where the board has already conducted a full revocation hearing and found the violation to have been committed. (People ex rel. Menechino v. Warden, 27 N Y 2d 376 .) II. There is no constitutional requirement that an alleged parole violator is entitled to a right to counsel at a preliminary hearing held pursuant to Morrissey v. Brewer. (People ex rel. Maggio v. Casscles, 28 N Y 2d 415 .) III. The holding of preliminary hearings at Ossining Correctional Facility for New York City parolees satisfies the requirement of Morrissey v. Brewer that these hearings be conducted at or reasonably near to the place of alleged violation. (People ex rel. Franklin v. Warden, 31 N Y 2d 498 ; Rhem v. McGrath, 326 F. Supp. 681 .) IV. Morrissey v. Brewer does not apply to a parolee whose revocation process has begun prior to the date of that decision. (Johnson v. New Jersey, 384 U. S. 719 ; Miranda v. Arizona, 384 U. S. 436 ; Escobedo v. Illinois, 378 U. S. 478 .)
Thomas M. McDade for the Legal Aid Society of Westchester County, amicus curiae.
The invidious distinction in which only New York City and Rockland County parolees are rushed to a State prison, although in all other counties detainees are held in local jails until their status formally changes, operates as an unconstitutional discrimination having no reasonable basis in fact or law. (Weber v. Aetna Cas. & Sur., 406 U. S. 164 ; Harper v. Virginia Bd. of Elections, 383 U. S. 663 ; Skinner v. Oklahoma, 316 U. S. 535 ; United States ex rel. Robinson v. York, 281 F. Supp. 8 ; Kent v. United States, 383 U. S. 541 ; Hyser v. Reed, 318 F. 2d 225 ; Richardson v. Markley, 339 F. 2d 967 ; Hodge v. Markley, 339 F. 2d 973 .)

In each of the cases before us[1] , we are called upon to consider for the first time whether a parolee has a due process right to the assistance of counsel at a preliminary parole revocation hearing.

The Supreme Court recently addressed itself to this issue with respect to indigent probationers and parolees, holding that due process does not invariably require the assistance of counsel at a preliminary or a final revocation hearing. (Gagnon v. Scarpelli, 411 U. S. 778 .) The holding in Gagnon {supra) is, in part at least, at variance with our recent decision in People ex rel. Menechino v. Warden ( 27 N Y 2d 376 ). In the Menechino case, the majority were of the opinion that the right to counsel at a final revocation hearing is mandated by the due process clauses of the Federal and State Constitutions. But, in Gagnon, the Supreme Court made it clear that the Federal Constitution confers only a conditional or discretionary right to counsel at a final parole revocation hearing. To the extent that our decision in Menechino is predicated on the Federal Constitution, it must be read with Gagnon. The Gagnon decision also forecloses further debate as to a parolee’s Federal due process right to counsel at a preliminary revocation hearing. It, too, is conditional or discretionary. Thus, the issue in the cases before us narrows to a resolution of whether the State Constitution requires the assistance of counsel at the preliminary parole revocation hearing.

At the outset, it would be useful to examine the nature and scope of a preliminary hearing in the parole revocation process. To begin with, the revocation of parole is not part of a criminal prosecution, and, thus, all of the rights due a defendant in a criminal proceeding do not apply to parole revocations. As Chief Justice Burger incisively noted in Morrissey v. Brewer ( 408 U. S. 471 ), u [r] evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only

1 In the Calloway and Robinson cases, relators are no longer restrained of their liberty and dismissal of their appeals for mootness would ordinarily be indicated. (E.g., People ex rel. Gatti v. Amico, 30 N Y 2d 955 .) However, in view of the importance of the constitutional and subsidiary issues raised, and the desirability of prompt resolution (see, e.g., Matter of Bell v. Waterfront Comm., 20 N Y 2d 54 , 61; East Meadow Community Concerts Assn. v. Board Of Educ., 18 N Y 2d 129 , 133, 135), we retain jurisdiction.

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of the conditional liberty properly dependent on observance of special parole restrictions.” (408 U. S., at p. 480.)

There can be little doubt that the preliminary hearing is intended to be informal and summary in nature, with only a “minimal inquiry” necessary to determine whether there is probable cause or reasonable grounds to believe that the parolee has committed acts that would constitute a violation of parole conditions. With regard to the process that is due at such hearings, the parolee is entitled to notice of the hearing and the nature of the charges. The parolee, of course, should be given an opportunity to appear at the hearing and to testify in his own behalf, as well as to present such relevant evidence, including the testimony of witnesses, as may assist the hearing officer in determining whether further revocation proceedings are warranted. Once the hearing officer is satisfied that there is probable cause to believe that the terms of parole have been violated, the parolee may be detained for a full revocation hearing. Since the preliminary hearing anticipates only a “ minimal inquiry ” as to the alleged violations and does not require a final resolution of charges or factual issues, it. is doubtful that the presence of counsel would be of any constructive assistance to the parolee. Certainly, in the vast majority of eases, there should be no need for the assistance of counsel at this preliminary stage of the parole revocation process. Of course, at the final revocation hearing, where the parolee’s fate hangs in the balance, the assistance of counsel is assured, under our State Constitution, so that the Parole Board may be “ accurately informed of the facts before it acts ’ ’. (People ex rel. Menechino v. Warden, 27 N Y 2d 376 , 383.) In a Word, the preliminary revocation hearing is not critical to the fairness of the final hearing which follows.

This is not to say, however, that the assistance of counsel at the preliminary hearing may never be necessary to satisfy the requirements of due process. Undoubtedly, there will be cases in which fundamental fairness — the touchstone of due process —will compel the assistance of counsel. In giving definition to the requirements of Federal due process, the Supreme Court has formulated useful guidelines in the Gagnon case, wherein the court noted, “ [p ] resumptively, it may be said that counsel should be provided in cases where * * * the probationer or parolee makes such a request, based on a timely and colorable

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claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is^uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present. In passing on á request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the [parolee] appears to be capable of speaking effectively for himself.” ( 411 U. S. 778 , 790-791.)

In sum, a parolee’s due process right to counsel at a preliminary revocation hearing under the State Constitution should be coextensive with that under the Federal Constitution and no more. Whether due process requires the assistance of counsel at this preliminary stage should depend on the peculiarities of particular cases. The decision as to the need for counsel should be made on a case-by-case basis in the exercise of a sound discretion by the Parole Board in accordance with the afore-mentioned guidelines.[2]

As a subsidiary issue on this appeal, appellants Calloway, Robinson and Richardson argue that Morrissey is fully applicable to all. parolees whose revocation proceedings were pending on the date of that decision (June 29,-1972). The Supreme Court, in Morrissey, stated that its decision — requiring prer liminary and final parole revocation hearings, was prospective, applicable only to ‘ ‘ future revocations of parole ’ ’. (408 TJ. S., at p. 490.) The problem seems to be one of definition — what is meant by a “ future revocation of parole ”.

For purposes of determining the applicability of Morrissey to these parolees and others similarly situated, it is necessary to understand the proceedings incident to a violation of parole. To begin with, parole revocation is a process. It is initiated by the issuance of a warrant for the retaking and temporary

2 There is no need for a remand in these cases to determine if any of these parolees would be entitled to the assistance of counsel under the Gagnon standards. Relators Calloway and Robinson are no longer restrained of Their liberty. Petitioner Stephens was afforded the assistance of counsel, at his hearing. Petitioner Richardson was declared delinquent and ordered returned to custody before the date of the Morrissey decision and, as explained below, should not be entitled to a Morrissey preliminary hearing.

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detention of the parole violator followed by his actual arrest. (Correction Law, § 216; 7 NYCRR 1.17 [a].) (A warrant is not always necessary, however.) A violation of parole report is then prepared (usually by the violator’s parole officer) and presented to a member of the Board of Parole. (7 NYCRR 1.17 [b].) After considering the charges, the Parole Board member1 may declare the parolee delinquent and order his return to the appropriate institution. (7 NYCRR 1.17 [b].) Upon return to the institution, the parolee is afforded a hearing before the Parole Board, at which hearing certain minimum requirements of due process apply. (Correction Law, § 218; 7 NYCRR 1.19; People ex rel. Menechino v. Warden, supra.)

In determining whether a parolee is entitled to a preliminary hearing, the critical stage in this process is the declaration of delinquency by the Parole Board member. (7 NYCRR 1.17.) That is to say, if on the date of the Morrissey decision the charges of delinquency had not yet been considered and the parolee had not yet been declared delinquent by a member of the Parole Board, then he should be entitled to a Morrissey preliminary hearing for the revocation process had not yet been engaged. That the delinquency may be declared retroactive and that the actual arrest may predate Morrissey, is, we think, irrelevant for the purpose of determining whether a Morrissey preliminary hearing should be available to the parolee. On this view, the Appellate Division correctly held that petitioner Richardson, who was declared delinquent on May 5,1972, before the Morrissey decision, was not entitled to a preliminary hearing. By the same token, relators Calloway and Robinson and petitioner Stephens, all of whom were declared delinquent subsequent to Morrissey, were properly afforded preliminary hearings.

It is also argued by appellants Calloway and Robinson, that a due process right to bail exists for a parolee detained in advance of a revocation hearing. We conclude that a parolee is not entitled to bail. Our State Constitution does not decree a right to bail, but merely proscribes “ excessive bail ”. (N. Y. Const., art. I, § 5; People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393 , 398.) The right to bail is purely statutory (People v. Wirtschafter, 305 N. Y. 515 ,‘ 519; People ex rel. Shapiro v. Keeper of City Prison, supra) and is clearly delin

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eated in the Criminal Procedure Law (CPL art. 530). “ When a principal, whose future court attendance at a criminal action or proceeding is or may be required, initially comes under the control of a court, such court must, by a securing order, either release him on his own recognizance, fix bail or commit him to the custody of the sheriff.” (CPL 510.10.) Certainly, a parole revocation proceeding before a Parole Board is not a 1 ‘ criminal action or proceeding ” contemplated by the statute, as the statute specifically refers to a “proceeding * * * under the control of a court ”.

“Even beyond the intent of the statute,” Justice Hopkins aptly wrote for the court in People ex rel. Little v. Monroe ( 38 A D 2d 398 , at p. 400), “ the granting of bail in a parole revocation proceeding would create insuperable problems. The court granting bail is not in control of the proceeding — that is within the power of the board of parole. It is the province of the board to determine when the hearing shall be held. If the person accused of delinquency did not appear at the hearing, after notice, there is no procedure whereby bail would be revoked and the person restored to the custody of the board. Even to improvise a procedure by court rule or decision would be difficult, if attainable.”

Hence, we are of the opinion that, in the absence of specific legislative direction, parolees are not entitled either to bail or to release pending a hearing before the Parole Board.

Finally, it is contended that preliminary hearings for parole violators arrested in the City of New York for violations occurring there should be conducted in the city, rather than at the Ossining Correctional Facility as is the board’s practice.

Included within a parolee’s due process right to a preliminary hearing is the right to have that hearing conducted “ at or reasonably near the place of the alleged parole violation or arrest ”. (408 U. S., at p. 485.) Ordinarily, this would indicate that preliminary revocation hearings should be conducted in the City of New York for parole violations or arrests occurring there. The reason is readily apparent — to facilitate the production of witnesses and other evidence. However, we are advised that because of the overcrowded detention facilities within the City of New York, it has been the board’s practice to detain this class of parolees at Ossining, some 35 miles away, and to conduct their

Dissent

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preliminary hearings there as well. While hearings within the City of New York would be preferable, we do not believe that this reasonable expedient procedure adopted by the board should be condemned as violative of Morrissey.

We have considered the other arguments advanced and found them to be without merit.

Accordingly, the orders in People ex rel. Calloway v. Skinner, People ex rel. Robinson v. Skinner, and Matter of Richardson v. New York State Board of Parole should be affirmed; and the order in Matter of Stephens v. Kirsch should be reversed and the petition dismissed.

(dissenting). There can be no doubt, as the entire court recognizes, that the parolees in these several cases were entitled to preliminary hearings to determine whether “ probable cause ” existed to believe that they had “ committed acts that would constitute a violation of parole conditions.” (Morrissey v. Brewer, 408 U. S. 471 , 485.) In my opinion, they also had a right — based on the rationale underlying our decision in People ex rel. Menechino v. Warden ( 27 N Y 2d 376 ) — to the assistance of counsel at those hearings. Since imprisonment follows a finding that probable cause exists, a parolee should have counsel to aid him in demonstrating that there is no such basis for his detention and imprisonment.

Even though the United States Constitution may not require such legal representation (see Gagnun v. Scarpelli, 411 U. S. 778 ), our own State Constitution does. Due process under that document demands this “if”, as we observed in Menechino — which accorded parolees the right to counsel at parole revocation hearings — ‘ ‘ the search for truth is not to be sacrificed to administrative speed and convenience ” (27 N Y 2d, at p. 383). In short, I subscribe completely to what Justice Houle wrote in the course of his dissenting opinion in People ex rel. Calloway v. Skinner and People ex rel. Robinson v. Skinner ( 41 A D 2d 106 , 109). After noting that the Supreme Court in Morrissey ( 408 U. S. 471 , 487, supra) had decided that a parolee at a preliminary hearing has the right to speak in his own behalf, present documents and witnesses and cross-examine those who furnish adverse information, Judge Mould went on to say (41 A D 2d, at pp. 111-112):

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‘ ‘ Such rights by the parolee * * * imply that they be exercised in an effective manner. * * *
‘ ‘ To extend the right of a hearing to the delators [parolees], without permitting them counsel so that they could effectively be heard, confront the charges and present proof on their own behalf, would be to vitiate the purpose of such hearing. No legitimate distinction can be drawn between the parole revocation hearing and the preliminary hearing that would mandate the right to counsel in the one and deny it in the other, and relators, therefore, had a constitutional right to representation by counsel at their preliminary hearings.”

I would, therefore, affirm the order appealed from in Stephens v. Hirsch ( 41 A D 2d 703 ) and reverse the orders in People ex rel. Calloway, People ex rel. Robinson ( 41 A D 2d 106 , supra) and Matter of Richardson v. Board of Parole ( 41 A D 2d 179 ).[1] As to the additional contention advanced by the parolee concerning the place where the preliminary hearing should be held, I would merely state that, in my judgment, a proceeding at the Ossining Correctional Facility — where the Parole Board conducts hearings for those arrested in New York City (many miles from Ossining) — does not meet the requirement that such a hearing must be “at or reasonably near the place of the alleged parole violation or arrest ”. (Morrissey v. Brewer, 408 U. S. 471 , 485, supra.)

Judges Burke, Breitel and Gabrielli concur with Judge Jasen; Chief Judge Fuld dissents and votes to reverse in a separate opinion in which Judges Jones and Wachtler concur.

In People ex rel. Calloway, People ex rel. Robinson and Matter of Richardson: Order affirmed, without costs.

In Matter of Stephens: Order reversed, without costs, and petition dismissed.

1 Since the appellants in the Galloway, Robinson and Richardson cases, are no longer incarcerated, there would, of course, be neither need nor occasion for a new preliminary hearing.

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