PEOPLE v. EASTMOND

The transcript of the preliminary parole revocation hearing shows that petitioner's parole officer produced an Undelivered Defendant Form that, as described by the hearing officer, was signed by petitioner, witnessed by a correction officer, dated the same day as the hearing, and indicated that petitioner "refused to appear" at the hearing without giving a reason. Such form constituted competent and sufficient evidence of a knowing and intelligent waiver by petitioner of the right to be present at the hearing (People ex rel. Scott v. Travis, 251 A.D.2d 264). In the instant application, petitioner alleges that he was not produced for the hearing and did not refuse to appear thereat, and that conducting the hearing in his absence was therefore a denial of his right to be present. In opposition, respondent Division of Parole, for unstated reasons, was unable to produce the Undelivered Defendant Form it had produced at the hearing, and it therefore relies on the transcript of the hearing as proof of petitioner's waiver of the right to be present. Such reliance is proper. The hearing officer's summary of the Undelivered Defendant Form provides ample assurance of its existence and regular execution (cf., People v. Serrano, 93 N.Y.2d 73, 78).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.