People ex rel. Griffin v. 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 and directed respondents to afford petitioner a new final revocation hearing. Judgment reversed, without costs or disbursements, and matter remitted to Special Term for further proceedings consistent herewith. There should be a hearing to determine whether petitioner was notified on February 20,1980 to attend the final revocation hearing and declared his refusal to present himself, both allegations being denied under oath by the petitioner, and whether the petitioner waived his right to attend (see People v Epps, 37 NY2d 343; cf. People ex rel. McFadden v New York State Div. of Parole, 79 AD2d 952). The hearing officer erred in his determination to hold the hearing in absentia on the basis of the hearsay testimony of a parole officer, who testified that he had been informed by another parole officer that the latter had previously notified the petitioner that the hearing was to be held on that day and that the petitioner declared his refusal to attend. A finding of a waiver of the constitutional right to attend a final revocation hearing requires legal proof and may not be founded on hearsay. If it be determined that petitioner intentionally refused to come to the hearing and thereby waived his right to attend, the determination of the Board of Parole should be upheld and the writ dismissed (see People ex rel. Sincento v New York State Bd. of Parole, 78 AD2d 574). If it be determined that petitioner did not waive such right, the writ should be sustained and the petitioner restored to parole status, inasmuch as a direction for such hearing to be conducted subsequent to the expiration of the time allowed by section 259-i (subd 3, par [f], cl [i]) of the Executive Law would be an inappropriate remedy (see People ex rel. Levy v Dalsheim, 66 AD2d 827, affd 48 NY2d 1019). Hopkins, J.P., Gibbons and Cohalan, JJ., concur.