From Casetext: Smarter Legal Research

Matter of Byrne v. Hammock

Appellate Division of the Supreme Court of New York, Second Department
Nov 21, 1983
97 A.D.2d 823 (N.Y. App. Div. 1983)

Opinion

November 21, 1983


In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Parole which, inter alia, sustained certain parole violation charges against petitioner and revoked his parole, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Isseks, J.), entered February 23, 1983, which dismissed the proceeding. Judgment reversed, on the law, without costs or disbursements, and petition granted to the extent that it is directed that, after petitioner completes serving time which may be owed on his 1982 conviction, he be restored to parole under his 1976 conviction. A parole warrant was lodged against petitioner on February 2, 1982. The preliminary parole revocation hearing was initially scheduled for February 17, 1982. When the New York City Department of Correction failed to produce petitioner on that day, the hearing was adjourned to February 22, 1982. Section 259-i (subd 3, par [c], cl [i]) of the Executive Law provides that within 15 days after the execution of a parole warrant, the Board of Parole shall afford the alleged parole violator a preliminary revocation hearing. The failure of the New York City Department of Correction to produce petitioner does not serve as an acceptable excuse for denying petitioner his right to a timely preliminary hearing (see People ex rel. Gonzales v Dalsheim, 52 N.Y.2d 9; People ex rel. Walsh v Vincent, 40 N.Y.2d 1049; People ex rel. Durham v Flood, 93 A.D.2d 847). In light of this, we do not find it necessary to address petitioner's other contention. Mollen, P.J., Mangano, Thompson and Boyers, JJ., concur.


Summaries of

Matter of Byrne v. Hammock

Appellate Division of the Supreme Court of New York, Second Department
Nov 21, 1983
97 A.D.2d 823 (N.Y. App. Div. 1983)
Case details for

Matter of Byrne v. Hammock

Case Details

Full title:In the Matter of JOSEPH BYRNE, Appellant, v. EDWARD HAMMOCK, as Chairman…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 21, 1983

Citations

97 A.D.2d 823 (N.Y. App. Div. 1983)

Citing Cases

People v. Warden of Rikers Island Corr. Fac

ver would ordinarily be established, in any way dispelled by respondent's aforesaid affidavit which, while…

PEOPLE EX REL. DAVIS v. WARDEN, KROSS CTR. NY

Respondent's contention that probable cause would have been established at a preliminary hearing had it been…