Opinion
June 16, 2000.
Appeal from Judgment of Cattaraugus County Court, Himelein, J. — Habeas Corpus.
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER AND LAWTON, JJ.
Appeal unanimously dismissed without costs. Memorandum: The contention of relator that he was denied his right to counsel at the preliminary parole revocation hearing was rendered moot by the determination revoking his parole following the final parole revocation hearing ( see, People ex rel. McCummings v. De Angelo, 259 A.D.2d 794, 794-795, lv denied 93 N.Y.2d 810; People ex rel. Chavis v. McCoy, 236 A.D.2d 892). In any event, although parolees may have counsel present at the preliminary hearing, there is no statutory right to counsel at that stage of parole revocation proceedings, "and there is nothing in the record to suggest that this is one of the small minority of cases in which `fundamental fairness — the touchstone of due process — will compel the assistance of counsel'" ( People ex rel. Clanton v. Smith, 105 A.D.2d 1123, lv denied 64 N.Y.2d 606, quoting People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 31-32; see also, People ex rel. Stewart v. Foreman, 123 A.D.2d 524; 9 NYCRR 8000.5 [a]).