People State New York Ex Rel. John Martinez v. Wilson Walters

In a habeas corpus proceeding, the appeal is from a judgment of the Supreme Court, Westchester County (Nicolai, J.), dated October 28, 1982, which granted petitioners application and ordered that he be discharged from custody and restored to parole. Judgment reversed, on the law, without costs or disbursements, and petition dismissed. Clearly, a parolee has a right to counsel at a final parole revocation hearing (Executive Law, § 259-i, subd 3, par [f], cl [v]; People ex rel. Menechino v Warden, 27 N.Y.2d 376, 383), but that right may be waived (People ex rel. McFadden v New York State Bd. of Parole, 79 A.D.2d 952, app dsmd 54 N.Y.2d 751; People ex rel. Lawrence v Smith, 50 A.D.2d 1073, mot for lv to app den 38 N.Y.2d 710). Upon our review of the record, we find that the waiver here was knowing, intelligent and voluntary. The hearing officer carefully explained to petitioner what his rights were and what the consequences of a waiver would be. The record makes it clear that petitioner embarked on that course and that he did so with his eyes open (see People ex rel. Brannaka v Hammack, 65 A.D.2d 840; People ex rel. Coleman v Smith, 56 A.D.2d 734; People ex rel. Clanton v Smith, 51 A.D.2d 873, mot for lv to app den 39 N.Y.2d 706; People ex rel. Lawrence v Smith, supra ; cf. Matter of Schwartz v Warden, 82 A.D.2d 870, app withdrawn 55 N.Y.2d 749; Matter of Jackson v Hammock, 82 A.D.2d 888). The contention that a waiver may not be made in the absence of counsel is not persuasive. The analogy to cases like People v Hobson (39 N.Y.2d 479) is inapt. Hobson (supra), and its progeny, interdict questioning [99 A.D.2d 476 Page 477]