People ex rel. White v. Smith , 93 A.D.2d 1001 ( 1983 )

— Upon reargument, judgment unanimously reversed, petition reinstated and relator remanded to Supreme Court, Wyoming County for a hearing in accordance with the following memorandum: We previously held that relator was not subject to the convenience and practical control of New York parole authorities while he was in Federal custody and that there was no existing statutory or administrative mechanism to effect his transfer for a revocation hearing (People ex rel. White v Smith, 90 AD2d 973). Upon reargument relator has submitted evidence which indicates the existence of a mechanism whereby he could have been made available and subject to the Board of Parole’s control. Since this evidence was not before Supreme Court, the matter should be remitted for an evidentiary hearing at which the parole authorities have the burden to demonstrate that a timely hearing was not held because relator was not subject to their convenience and practical control (see Matter ofVasquez v New York State Bd. of Parole, 58 NY2d 981; People ex rel. Posada-Osario v Hammock, 58 NY2d 978; People ex rel. Gonzales v Dalsheim, 52 NY2d 9). (Reargument of Appeal from judgment of Supreme Court, Wyoming County, Kasler, J. — habeas corpus.) Present — Callahan, J. P., Denman, Boomer, Green and Schnepp, JJ.