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People ex Rel. Brown v. Smith

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1985
115 A.D.2d 255 (N.Y. App. Div. 1985)

Opinion

November 15, 1985

Appeal from the Supreme Court, Wyoming County, McCarthy, J.

Present — Dillon, P.J., Doerr, O'Donnell, Pine and Schnepp, JJ.


Judgment unanimously affirmed. Memorandum: A parolee has the right to counsel upon a final parole revocation hearing (People ex rel. Menechino v Warden, 27 N.Y.2d 376). While even a represented parolee may waive that right in the absence of counsel (People ex rel. Cleveland v New York State Div. of Parole, 110 A.D.2d 671; People ex rel. Martinez v Walters, 99 A.D.2d 476, 477, appeal dismissed 63 N.Y.2d 727; see, People ex rel. Racona v Hammock, 115 A.D.2d 306), such waiver is not effective unless knowingly, intelligently and voluntarily made (see, People v White, 56 N.Y.2d 110; People v McIntyre, 36 N.Y.2d 10; People ex rel. Martinez v Walters, supra). Here, the administrative officer presiding at the final parole revocation hearing made no inquiry to determine whether relator understood the advantages of being represented by counsel or the disadvantages of proceeding pro se. There was, therefore, no basis in the record for a determination that relator's waiver of his right to counsel was knowing, intelligent and voluntary.


Summaries of

People ex Rel. Brown v. Smith

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 1985
115 A.D.2d 255 (N.Y. App. Div. 1985)
Case details for

People ex Rel. Brown v. Smith

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK ex rel. STEVEN BROWN, Respondent, v…

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

Date published: Nov 15, 1985

Citations

115 A.D.2d 255 (N.Y. App. Div. 1985)

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