Petitioner was convicted in the Supreme Court, New York County, of the crime of manslaughter in the first degree and was sentenced to imprisonment for an indeterminate term of 15 to 25 years. On January 10, 1973 petitioner was paroled with a maximum expiration date of March 15, 1989. A New York Criminal Lawyer said that, while in Puerto Rico with permission of his parole officer, petitioner was arrested on an indictment returned by a Federal Grand Jury in the Southern District of New York, charging violation of Federal drug laws.
In early January, 1976 petitioner was extradited to New York and incarcerated at the Metropolitan Correctional Center in Manhattan. Petitioner’s parole officer visited him in Federal custody and questioned him about his arrest but did not serve him with parole violation charges. On March 20, 1976 petitioner was found guilty of conspiracy to violate Federal narcotics laws. Thereafter, the Board of Parole declared petitioner delinquent and issued a parole violation warrant against him. Petitioner was sentenced to a term of 7 1/2 years imprisonment on the Federal conviction.
On May 5, 1976 petitioner was transferred from the Metropolitan Correctional Center in New York City to the Federal Correctional Facility in Atlanta, Georgia. New York officials attempted to lodge the parole violation warrant at the Metropolitan Correctional Center. In light of the fact that petitioner had been transferred to Atlanta on the previous day the warrant was forwarded to that facility where it was eventually lodged against petitioner.
A Nassau County Criminal Lawyer said that, petitioner was notified by Federal authorities that the New York detainer warrant had been filed with the Sheriff of Fulton County, Georgia. Petitioner formally requested the New York State Parole Board to conduct a prompt parole revocation hearing. Petitioner was released from Federal custody and was arrested on the detainer warrant by the Sheriff of Fulton County, Georgia. On October 28, 1980 he was returned to New York.
On December 8, 1980 he was afforded a final parole revocation hearing. On the very same date, a writ of habeas corpus was issued on Julio’s petition which alleged that the United States Bureau of Prisons had a policy of making Federal prisoners available to state authorities upon their request for the disposition of pending charges including parole revocation charges. The petition further alleged that had such a request been made by the New York State Board of Parole to the United States Bureau of Prisons, the petitioner could have received a prompt final parole revocation hearing in New York City.
In opposing the writ, the Attorney-General argued that a final parole revocation hearing had in fact been afforded petitioner on December 8, 1980 and that pursuant to numerous precedents, a parole violator incarcerated in a foreign jurisdiction was only entitled to a parole revocation hearing upon his return to the jurisdiction of the New York State Board of Parole.
A Bronx Criminal Lawyer said that, Special Term denied the application and dismissed the writ, holding that while petitioner was in Federal custody in Georgia he could not be “subject to the convenience and practical control of the Parole Board, and the final revocation hearing was not required to be given petitioner until his return to New York State”.
A motion to reargue was thereafter brought on by petitioner, relying on People ex rel. Gonzales v. Dalsheim, 52 N.Y.2d 9, 436 N.Y.S.2d 199, 417 N.E.2d 493 which held that even where a parolee was incarcerated in another jurisdiction it was incumbent on the parole board to show that a hearing could not be held subject to its convenience and practical control.
In effect granting the motion to reargue, and adhering to its original determination, Special Term specifically held that People ex rel. Gonzales v. Dalsheim (supra) should not be applied retroactively.
A Suffolk Criminal Lawyer said that, the Court agrees with the holding of Special Term with respect to the issue of retroactivity. Preliminarily, it must be stressed that petitioner’s request in July, 1976 for a final parole revocation hearing and the Parole Board’s answer to petitioner in August, 1976 that he would be given a hearing when he returned to New York not only predated the Court of Appeals decision in Gonzales, but also predated a similar holding of this court in the case of Matter of Higgins v. New York State Div. of Parole, 72 A.D.2d 583, 420 N.Y.S.2d 932, which was decided on October 22, 1979. It must be stressed that prior to Higgins, established case law was to the effect that the parole board did not have to afford a final parole revocation hearing to a person who was held in a prison in a foreign jurisdiction pursuant to a conviction for crimes committed therein.
The issue in this case is whether the decisions in Higgins and Gonzales should be construed to apply retroactively to events which transpired in 1976, long before they were decided.
The Court is of the view that the question posed must be answered in the negative.
It is the general rule that a decision which overrules a prior decision is to be given retroactive application to all those cases in the judicial process then pending and undecided, including those on appeal. Pursuant to this rule appellate courts generally give effect to the law as it exists at the time their decisions are rendered.
Although there has been a traditional policy of retroactive application, it is now well established that courts have the power to apply an overruling decision purely prospectively and to declare that the rule announced by the overruling decision will operate only upon future transactions or events.
Applying these criteria to the rule announced in Matter of Higgins v. New York State Div. of Parole, and People ex rel. Gonzales v. Dalsheim, it is the Court’s view that prospective and not retrospective application is warranted.
The first criterion is the purpose to be served by the new standards. Due process required a reasonably prompt, two-stage, inquiry (1) to determine whether there was probable cause to believe that a parolee had violated a condition of his parole and, if so, (2) to determine with somewhat greater formality whether such a violation had actually occurred. The rationale behind this ruling was that the state could not again deprive the parolee of his liberty without “some orderly process, however informal”.
The reasoning behind requiring prompt revocation hearings is apparently to get the matter over with quickly while the evidence of guilt or innocence of the violation is fresh. Where, as here, the parolee has been convicted of another crime, and is not merely awaiting trial therefor, the foreign conviction constitutes prima facie proof of the parole violation.
Secondly, the granting of a prompt parole revocation hearing to a New York parolee who is subsequently incarcerated in another jurisdiction by reason of the commission of and conviction for, another crime committed therein does not enable the parolee to have his existing New York sentence run concurrently with the sentence on the new conviction.
What this section means in our case is that petitioner is not entitled, as he once claimed, to any credit for the time he spent in Federal custody on the narcotics conviction and no matter how quickly his revocation hearing was held, his New York sentence would not resume until he was returned “to an institution under the jurisdiction of the state department of correction”.
In short there was no pressing need for a prompt revocation hearing in this case because (1) the Federal conviction is prima facie proof of the parole violation and (2) no matter how early the hearing was held, the sentences could not run concurrently.
The other two criteria for determining whether an overruling decision should or should not be applied retroactively are the extent to which authorities relied upon the overruled decision and the possible effects upon the administration of justice of retroactive application. A Suffolk County Criminal Lawyer said it is clear that the determination of the parole board in its letter to petitioner of August 23, 1976, that he would be given a hearing when he was returned to New York, was in full accord with then existing case law (Matter of Mullins v. Board of Parole, 43 A.D.2d 382, 351 N.Y.S.2d 757, supra; People ex rel. Spinks v. Dillon, 68 A.D.2d 368, 416 N.Y.S.2d 942, supra). To apply those cases retroactively and sustain the writ would prevent a declaration of parole delinquency and thereby give petitioner credit against his maximum sentence for all the time since his parole release in 1973. No deduction of credit for the time spent on the Federal charges would be allowed and petitioner would thus receive a windfall of some five years credit against his New York sentence to which he would not otherwise be entitled.
The effect on the administration of justice of a retroactive application of Higgins and Gonzales can also be imagined, since any prisoner similarly situated to petitioner herein could petition for a writ of habeas corpus and obtain his release.
Accordingly, the Court concludes that Higgins and Gonzales should not be given retroactive application. Appeal from a judgment of the Supreme Court, Westchester County, entered December 23, 1980, dismissed, without costs or disbursements. Said judgment was superseded by an order of the same court, dated January 29, 1981, which granted re-argument. Order affirmed insofar as appealed from, without costs or disbursements.
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