Opinion
December 19, 1983
Appeal from the Supreme Court, Queens County, SEYMOUR ROTKER, J.
William E. Hellerstein and Roger Brazill ( Vivian Lazerson of counsel), for appellant.
Robert Abrams, Attorney-General ( Barbara L. Linzer, Melvyn R. Leventhal, Gerald J. Ryan and Bridget E. Farrell of counsel; Ramona Goodman on the brief), for respondents.
At issue on this appeal is the proper allocation of the fact-finding function in parole revocation proceedings. More specifically, we are called upon to determine whether a parolee, who has been declared delinquent, is entitled to a judicial evidentiary hearing in which to litigate the merits of his claim that he had not been served with statutorily required notices before an otherwise timely scheduled administrative revocation hearing is conducted. We hold that when, as here, proper service is established, prima facie, by a parole officer's affidavit, judicial intervention is not appropriate and the challenge must first be pursued in the administrative process.
Petitioner, Reginald Walker, was convicted of attempted rape in the first degree in the Supreme Court, Bronx County, and was sentenced to an indeterminate term of three to six years' imprisonment. Following his release on parole, he was declared delinquent and was taken into custody on January 3, 1983, at which time he waived a preliminary hearing.
On March 28, 1983, 84 days after a preliminary hearing had been waived, petitioner appeared before a hearing officer at a rescheduled final parole revocation hearing. The hearing officer advised him of his various rights, including the right to receive a copy of the violation report, the document that specifies the charges lodged against a parolee. After petitioner claimed that he had not received the report, the hearing was adjourned upon petitioner's request for counsel and the hearing officer expressly advised him that on the adjourned date his attorney could raise all arguments concerning the adequacy of the notice.
The next day, however, petitioner commenced this habeas corpus proceeding claiming that he was denied his statutory and due process rights in that he was not served with notice of the conditions of his parole which he was alleged to have violated and the manner in which they had been violated within three days of the execution of the parole warrant (Executive Law, § 259-i, subd 3, par [c], cl [iii]) and that he did not receive a final hearing within 90 days of his waiver of the preliminary hearing (Executive Law, § 259-i, subd 3, par [f], cl [i]). He argued that the March 28 adjournment was chargeable to the Parole Board due to its failure to serve him with a copy of the violation of parole report.
We are told that the final hearing was rescheduled to take place on May 10, 1983.
Respondents alleged in their answer that petitioner was served with all necessary notices on the date that he was taken into custody and submitted an affidavit of the arresting parole officer to that effect.
Criminal Term, relying on the affidavit, dismissed the writ. On appeal, petitioner claims that the affidavit is hearsay and cannot rebut his allegation of lack of service. The Attorney-General purports to confess error and requests a remand for an evidentiary hearing. We reject the concession (see Sibron v. New York, 392 U.S. 40, 58; People v. Berrios, 28 N.Y.2d 361, 366-367; cf. Matter of Geneseo Cent. School [ Perfetto Whalen Constr. Corp.], 53 N.Y.2d 306, 312, n 2; Rentways, Inc. v O'Neill Milk Cream Co., 308 N.Y. 342, 349) and affirm.
Habeas corpus is, of course, an appropriate remedy for review of parole revocation proceedings (e.g., People ex rel. Menechino v. Warden, 27 N.Y.2d 376; People ex rel. Van Fossen v. Dillon, 72 A.D.2d 166, 168) and will also lie when a final hearing is not scheduled to be held within the statutory period (see State of New York ex rel. Vega v. New York State Div. of Parole, 96 A.D.2d 605; People ex rel. Herrera v. Schager, 93 A.D.2d 847; People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, affd 48 N.Y.2d 1019). In this case, however, the final hearing was scheduled within the statutory period and the adjournment for the purpose of obtaining counsel is chargeable against the petitioner ( People ex rel. Sloan v. New York State Bd. of Parole, 88 A.D.2d 666; People ex rel. Miranda v. Dalsheim, 70 A.D.2d 941; People ex rel. Kitt v Dalsheim, 67 A.D.2d 934), unless proper notice of the charges has not been given ( People ex rel. Andersen v. New York State Bd. of Parole, 94 A.D.2d 807, 808; Matter of Lott v. Smith, 84 A.D.2d 909, 910; cf. Matter of Jackson v. Hammock, 82 A.D.2d 888).
A process server's affidavit of service has been held to create a prima facie case on the issue of service in civil litigation (see Smid v. Lombard, 83 A.D.2d 877; Orchard Park Cent. School Dist. v. Orchard Park Teachers Assn., 50 A.D.2d 462, 468, app dsmd 38 N.Y.2d 911; Denning v. Lettenty, 48 Misc.2d 185, 186 [NUNEZ, J.]; Siegel, N.Y. Prac, § 79, p 87; but see Queensboro Leasing v Resnick, 78 Misc.2d 919 ) and we think the same rule should be applicable in parole revocation proceedings. Since such proceedings possess the attributes of an administrative hearing rather than a criminal trial ( People ex rel. Piccarillo v. New York State Bd. of Parole, 48 N.Y.2d 76, 80; People ex rel. Maggio v. Casscles, 28 N.Y.2d 415, 418; cf. People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196, 204), a hearing officer need not follow the strict rules of evidence ( People ex rel. Pena v. New York State Div. of Parole, 83 A.D.2d 887, 888) and there is no general requirement that "the board * * * produce live witnesses to corroborate hearsay violation reports" ( People ex rel. Gaskin v. Smith, 55 A.D.2d 1004, 1005). Moreover, the Supreme Court has cautioned that "the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial" ( Morrissey v. Brewer, 408 U.S. 471, 489; but see People ex rel. Gambino v. Warden, 43 A.D.2d 400, 403 ; People ex rel. McGee v. Walters, 96 A.D.2d 605, mot for lv to app granted 60 N.Y.2d 556).
To the extent that Pena holds that there must be a residuum of legal evidence to support the hearing officer's findings (citing People ex rel. Wallace v. State of New York, 70 A.D.2d 781, app dsmd 48 N.Y.2d 1025), we note that the legal residuum rule of Matter of Carroll v. Knickerbocker Ice Co. ( 218 N.Y. 435, 440) on which the court in Wallace relied, has been abrogated by the Court of Appeals ( Matter of Eagle v. Paterson, 57 N.Y.2d 831, 833; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, n).
Petitioner's reliance upon People ex rel. Herrera v. Schager ( 88 A.D.2d 983) and People ex rel. Griffin v. Walters ( 83 A.D.2d 618) is misplaced. Both cases involved a waiver of presence and, therefore, the right to be heard at the parole revocation hearing itself. In such circumstances, a hearsay affidavit will not suffice.
In our view, the issue of whether petitioner received timely notice of the specified charges is a question of fact to be resolved at the parole revocation hearing. Respondents have established, prima facie, that timely service was made and petitioner will have a full opportunity to present rebutting evidence in the administrative process (cf. Engel v. Lichterman, 95 A.D.2d 536; Vita v. Heller, 97 A.D.2d 464; Watt v. New York City Tr. Auth., 97 A.D.2d 466). Should the issue be resolved against him, petitioner will then have an opportunity to obtain judicial review of that determination (see People ex rel. Martinez v. New York State Bd. of Parole, 56 N.Y.2d 588; People ex rel. Gaskin v Smith, supra; People ex rel. Gambino v. Warden, supra, p 403; People ex rel. Warren v. Mancusi, 40 A.D.2d 279).
Habeas corpus is designed to be a summary remedy and we do not believe it to be an appropriate vehicle to bypass administrative remedies when there are disputed factual issues present. Nor would it be a sound policy, in such circumstances, to permit a collateral attack upon a determination not yet made (cf. People ex rel. Rosenthal v Wolfson, 48 N.Y.2d 230).
For the reasons stated, the judgment appealed from should be affirmed, without costs or disbursements.
LAZER, O'CONNOR and BOYERS, JJ., concur.
Judgment of the Supreme Court, Queens County, dated May 23, 1983, affirmed, without costs or disbursements.