People State New York v. Stephen Dalsheim

In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Westchester County, dated August 31, 1978, which dismissed the petition and directed respondents to afford him a final parole revocation hearing within 15 days of the entry of the judgment. Judgment reversed, on the law, without costs or disbursements, petition granted with prejudice, and petitioner is restored to parole under the conditions heretofore in effect. Petitioner was sentenced to an indeterminate term of imprisonment with a maximum of nine years on April 26, 1974. He was released on parole in October, 1977. On April 11, 1978 a warrant for the retaking and temporary detention of petitioner as an alleged parole violator was issued. On April 20, 1978 he was afforded a preliminary hearing which resulted in a finding of probable cause with respect to a charge that petitioner had failed to advise his parole officer of a February 24, 1978 arrest. In July, 1978 petitioner commenced this habeas corpus proceeding seeking his release from custody due to respondents failure to afford him a timely final parole revocation hearing. Such hearing was scheduled for August 24, 1978 but a determination has not yet been made. On January 1, 1978 section 259-i of the Executive Law became effective (L 1977, ch 904, § 3). Section 259-i (subd 3, par [f], cl [i]) provides, in part, that: "Revocation hearings shall be scheduled to be held within ninety days of the probable cause determination." Though there is an absence of legislative history on the question of whether the statute is to be strictly construed or to be considered merely as a guideline, the language clearly indicates that the legislative intent was to create a time period beyond which any delay was unreasonable per se. Prior to the enactment of the above statute, courts generally made ad hoc determinations on the "reasonableness" of the delay (see Matter of Beattie v New York State Bd. of Parole, 47 A.D.2d 656, affd 39 N.Y.2d 445; People ex rel. Serrano v Warden, N. Y. City [66 A.D.2d 827 Page 828]