People ex rel. Savarese v. New York State Board of Parole

OPINION OF THE COURT

This is a motion brought on by an order to show cause seeking reargument of a decision of this court dated October 3, 1980 dismissing a writ of habeas corpus, sought on the ground that the petitioner had not been afforded his preliminary hearing within 15 days as required by section 259-i (subd 3, par [c], cl [i]) of the Executive Law.

The motion to reargue is granted. This court has already determined that the Attorney-General has not given a sufficient explanation for failure of the Parole Board to comply with the statute. Upon examination of People ex rel. Levy v Dalsheim (48 NY2d 1019) and People ex rel. Johnson v New York StateBd. of Parole (71 AD2d 595) the court finds that the provisions of section 259-i of the Executive Law are to be strictly construed. Although the above two cases deal with failure to grant a final parole hearing within 90 days it appears clear that the same construction should be applied where there is a failure to comply with the statute as far as a preliminary hearing is concerned. The only appropriate remedy is vacatur of the warrant and reinstatement of parole.

*917Accordingly, the parole warrant is vacated and the petitioner is restored to parole.