Calcione v. New York State Board of Parole

W. Vincent Grady, J.

Petitioner, by order to show cause, in this CPLR article 78 proceeding seeks an order directing respondent to allow counsel to represent Benny Calcione at his parole release hearing.

While it is true that the Court of Appeals has held that due process requirements do not mandate that counsel be present at a parole release hearing (Briguglio v New York State Bd. of Parole, 24 NY2d 21), under the special circumstances present here, with petitioner being physically and mentally incapable of speaking on his own behalf preventing a meaningful parole release hearing for him, the court will grant the relief herein requested.

In Matter of Solari v Vincent (77 Misc 2d 54, affd 46 AD2d 453), this court held that a non-English speaking inmate must be provided with an interpreter so that he may be given a meaningful parole release hearing. In the instant proceeding, petitioner cannot prepare and present his case before the Parole Board due to the serious nature of his present mental condition. Procedural fairness under the circumstances here warrants participation of counsel at the parole release hearing. (See Wolff v McDonnell, 418 US 539.) The holding herein is not to be construed as mandating the representation by counsel for all patients at Matteawan State Hospital at parole release hearings. The special circumstances of this case warrant the relief sought in the petition.

Accordingly, the petition is granted to the extent that respondent is directed to permit petitioner to be assisted by counsel and to speak in his behalf before the Board of Parole at the parole release hearing scheduled for May, 1975, at Matteawan State Hospital.

This shall constitute the decision, order and judgment of this court. The Attorney-General is directed to serve a copy of this judgment, with notice of entry, upon petitioner’s counsel and upon the petitioner at the place where he is presently confined.

To commence the statutory period for appeals as of right (CPLR 5513, subd [a]), you are advised to serve a copy of this order with notice of entry upon all parties.