People ex rel. Wentsley v. Dillon , 446 N.Y.S.2d 771 ( 1981 )

Judgment unanimously reversed and petition dismissed. Memorandum: Relator contends that the hearing officer improperly adjourned his final parole revocation hearing to a subsequent date within the required 90-day period without relator’s consent (see Executive Law, § 259-i, subd 3, par [f], cl [i]). Respondent contends that its rules permit such an adjournment when reasonable and that the statute requires consent only if the adjournment extends the final hearing beyond the 90 days. The rules of the Division of Parole provide that “[a] request for an adjournment of a hearing already in progress may be granted in the discretion of the presiding officer * * * for good cause” (9 NYCRR 8005.17 [c] [4]) and “[t]he presiding officer, on his own motion, may adjourn or postpone the hearing, having due regard for the interests of all parties” (9 NYCRR 8005.17 [c] [5]). The division has interpreted these rules to permit this adjournment without the consent of the relator and the division’s interpretation of its own regulations should be accorded great weight (see People ex rel. Knowles v Smith, 54 NY2d 259). Moreover, nothing in the record suggests that unfairness or prejudice to relator resulted from the adjournment granted here to permit the Board of Parole to investigate why its key witness failed to testify (see People ex rel. Calloway v Skinner, 33 NY2d 23, 31). Since the witness’ prior co-operation gave sufficient reason to believe he would co-operate at the hearing, his refusal to answer questions when called constituted a constructive absence which rendered adjournment by the hearing officer to permit investigation reasonable (see United States v Brasco, 516 F2d 816, cert den 423 US 860). (Appeal from judgment of Onondaga Supreme Court, Gorman, J. — habeas corpus.) Present — Simons, J. P., Callahan, Denman, Moule and Schnepp, JJ.