Opinion
December 17, 1982
Appeal from the Supreme Court, Wyoming County, Mintz, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Boomer and Schnepp, JJ.
Judgment unanimously reversed and petition dismissed. Memorandum: In this habeas corpus proceeding relator alleges that because his parole revocation hearing was not conducted by a neutral and detached person ( Morrissey v Brewer, 408 U.S. 471), he is entitled to a new hearing or to be restored to parole status. The hearing was conducted by an associate counsel for the Division of Parole, who had been designated by the chairman of the Parole Board to act as a hearing officer pursuant to section 259-d Exec. of the Executive Law. We recently affirmed a judgment wherein the court dismissed a similar petition holding that it is proper for counsel for the Parole Board to act as a hearing officer since commissioners themselves may hold final revocation hearings (see People ex rel. Simpson v Smith, 89 A.D.2d 1065). Relying on our decision in People ex rel. Pyclik v Smith ( 81 A.D.2d 1016), Special Term found that actual prejudice need not be shown inasmuch as the proceeding created "the appearance of impropriety." In that case, however, the hearing officer had previously been an Assistant Attorney-General representing the State in a proceeding involving the relator. No such conflict of interest, real or apparent, exists here.