People ex rel. Maiello v. New York State Board of Parole

Majority

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The People of the State of New York ex rel. Ralph Maiello, by Richard Finkelstein and Steve Sandler, Appellant, v New York State Board of Parole et al., Respondents.

Argued April 30, 1985;

decided June 4, 1985

POINTS OF COUNSEL

Steve Sandler, William E. Hellerstein and Roger Brazill for appellant.

Appellant’s uncounseled statements, made in response to his parole officer’s questioning after the latter had learned that counsel had entered the proceedings on appellant’s behalf, were obtained in violation of his State constitutional right to counsel and were consequently inadmissible against him at his parole revocation hearing. (Morrissey v Brewer, 408 US 471 ; People ex rel. Menechino v Warden, 27 NY2d 376 ; People v Skinner, 52 NY2d 24 ; People v Hobson, 39 NY2d 479 ; People v Knapp, 57 NY2d 161 ; People v Roberson, 41 NY2d 106 ; People v Claudio, 59 NY2d 556 ; People v Parker, 82 AD2d 661 , 57 NY2d

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815 ; People v Hodge, 53 NY2d 313 ; Matter of Lawrence S., 29 NY2d 206 .)

Robert Abrams, Attorney-General (Hugh B. Weinberg, Robert Hermann, Judith A. Gordon, Gerald J. Ryan and Christopher Keith Hall of counsel), for respondents.

I. Appellant’s statements, made during parole supervision in the absence of counsel, were admissible at his parole revocation hearing. (People v Hobson, 39 NY2d 479 ; People v Claudio, 59 NY2d 556 ; People ex rel. Calloway v Skinner, 33 NY2d 23 ; Morrissey v Brewer, 408 US 471 ; Gagnon v Scarpelli, 411 US 778 ; Mempa v Rhay, 389 US 128 ; People ex rel. Grace v Bantum, 113 Misc 2d 313 .) II. Even if appellant had a right to counsel when he met with his parole officer, the division of parole had inadequate notice that counsel had been retained for parole matters. (People v Marrero, 51 NY2d 56 .)

OPINION OF THE COURT

After being paroled from a sentence imposed upon a conviction for robbery in the second degree, relator was arrested for attempted burglary and possession of a weapon. Prior to his release on bail, relator’s Legal Aid counsel advised him of his obligation to report the arrest to his parole officer and further advised him that Legal Aid would represent him at any parole revocation hearing. When relator reported the arrest to his parole officer, he also informed his parole officer that his counsel advised him not to give any details, but, at the parole officer’s urging, he admitted violating the conditions of his parole. The admission was introduced at relator’s final revocation hearing which resulted in a finding that he had violated the terms of his parole and his being remanded for one year or in accordance with any new sentence imposed.

Under these circumstances, any violation of relator’s right to counsel under the State Constitution would not preclude the use at a final parole revocation hearing of statements obtained by the parole officer in the absence of relator’s counsel. A violation of a constitutional right may have different consequences depending upon whether the evidence obtained in violation of that right is attempted to be used in criminal or noncriminal proceedings. Thus, in People v Ronald W. ( 24 NY2d 732 ), it was held that statements given by a probationer to his probation officer in a custodial setting without Miranda warnings could sustain the revocation of probation and imposition of sentence. However, in People v Parker ( 57 NY2d 815 , affg 82 AD2d 661 ), we held that

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statements made by a Federal parolee to his parole officer under similar circumstances could not be used in a subsequent criminal prosecution (but see, Minnesota v Murphy, 465 US 420 ). People ex rel. Piccarillo v New York State Bd. of Parole ( 48 NY2d 76 ) is not to the contrary. There, we recognized that a parole revocation hearing is different from a criminal trial conducted to determine guilt or innocence, and is, instead, an administrative proceeding at which it is determined whether a parolee violated the terms of parole.

In the present case, both courts below properly determined that relator’s statement could be used at his final revocation hearing and, therefore, the order of the Appellate Division should be affirmed (see also, Matter of Utsey v New York State Bd. of Parole, 89 AD2d 965 ). We are here not presented with the issue of the permissible uses, if any, of relator’s statements in other proceedings (cf. Minnesota v Murphy, 465 US 420 , supra; compare, People v Parker, 57 NY2d 815 , affg 82 AD2d 661 , supra).

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur in Per Curiam opinion; Judge Titone taking no part.

Order affirmed, without costs.

Cases cited

Morrissey v. Brewer 408 US 471 SCOTUS 1972-06-29 p. 145, p. 146
People ex rel. Menechino v. Warden 27 NY2d 376 N.Y. 1971-01-13 p. 145
People v. Skinner 52 NY2d 24 N.Y. 1980-12-22 p. 145
People v. Hobson 39 NY2d 479 N.Y. 1976-05-04 p. 145, p. 146
People v. Knapp 57 NY2d 161 N.Y. 1982-10-12 p. 145
People v. Claudio 59 NY2d 556 N.Y. 1983-07-07 p. 145, p. 146
People v. Parker 82 AD2d 661 N.Y. App. Div. 1981-09-21 p. 145, p. 146, p. 147
People v. Hodge 53 NY2d 313 N.Y. 1981-06-18 p. 146
In re Lawrence S. 29 NY2d 206 N.Y. 1971-10-21 p. 146
People ex rel. Calloway v. Skinner 33 NY2d 23 N.Y. 1973-07-03 p. 146
Gagnon v. Scarpelli 411 US 778 SCOTUS 1973-05-14 p. 146
Mempa v. Rhay 389 US 128 SCOTUS 1967-11-13 p. 146
People ex rel. Grace v. Bantum 113 Misc 2d 313 N.Y. Sup. Ct. 1982-03-17 p. 146
People v. Marrero 51 NY2d 56 N.Y. 1980-07-08 p. 146
People v. Ronald W. 24 NY2d 732 N.Y. 1969-06-04 p. 146
People v. Parker 57 NY2d 815 N.Y. 1982-10-07 p. 146, p. 147
Minnesota v. Murphy 465 US 420 SCOTUS 1984-02-22 p. 147
People ex rel. Piccarillo v. New York State Board of Parole 48 NY2d 76 N.Y. 1979-10-18 p. 147
Utsey v. New York State Board of Parole 89 AD2d 965 N.Y. App. Div. 1982-09-07 p. 147