People State New York Ex Rel. Leon Brown v. Wilson Walters

In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Westchester County (Gurahian, J.), entered October 23, 1980, which dismissed the petition. Judgment reversed, on the law and the facts, without costs or disbursements, petition granted with prejudice, and petitioner is restored to parole under the conditions heretofore in effect. Petitioner was paroled on October 16, 1979 from a sentence of zero to three years imprisonment imposed on April 21, 1978, upon his conviction of the crime of robbery in the third degree. The maximum expiration date of the sentence was January 17, 1981. He was arrested in New Jersey on November 30, 1979 for an offense, or for offenses, committed by him in that State. A New York State parole violation warrant was lodged against petitioner on January 7, 1980, while he was incarcerated in a New Jersey jail. On that date he waived his right to a preliminary parole revocation hearing. Thereafter, and without having been retaken on the New York State warrant, (a) petitioner was sentenced by a New Jersey court to serve one year in a jail in that State upon his conviction of criminal possession of stolen property, and (b) upon the completion of his sentence in New Jersey on August 14, 1980, petitioner was returned to the Ossining Correctional Facility in this State. Petitioner was afforded a final revocation hearing on September 18, 1980, the same day on which the writ of habeas corpus was issued. Although petitioner waived his right to a preliminary parole hearing on January 7, 1980, the same day on which the New York State parole warrant was lodged against him at the New Jersey detention facility, no proof has been adduced herein by the respondent Board of Parole, beyond submission of proof that petitioner was incarcerated in [84 A.D.2d 852 Page 853]