People ex rel. Adams v Warden of Penitentiary of City of N.Y.
Annotate this CaseDecided on June 14, 2005
Supreme Court, Bronx County
THE PEOPLE OF THE STATE OF NEW YORK ex rel. Kenneth Adams, Petitioner,
against
Warden of the Penitentiary of the City of New York, RIKERS ISLAND, NEW YORK, and NEW YORK STATE DIVISION OF PAROLE, Respondents.
75029/2005
For Relator
STEVEN BANKS, ESQ.
The Legal Aid Society, Parole Revocation Defense Unit
BY:LARA TOMEI BIANCHI, ESQ.
For Respondents
THE HONORABLE ELIOT SPITZER
Attorney General of the State of New York
BY:EFTHIMIOS PARASIDIS, ESQ.
Assistant Attorney General
Dominic R. Massaro, J.
Relator brings this petition for a writ of habeas corpus claiming that Respondents violated his right to due process pursuant to the Constitution of the United States. After careful consideration of the record, the respective submissions of the parties and the applicable law, the petition is dismissed.
Chronology
On December 16, 1996, Relator was convicted in the Supreme Court of the State of New York, New York County (Davis, J.), of two counts of Burglary in the Third Degree (Penal Law § 140.20), and sentenced, as a second felony offender, to two consecutive indeterminate terms of imprisonment of from three to six years and two to four years.
Relator was released to the supervision of the New York State Division of Parole (hereinafter the "Division") on May 11, 2004. Relator signed the Certificate of Release Form, in which he agreed to adhere to all of the conditions of release imposed by the Division and [*2]indicated that he was informed that his parole would be revoked if any said condition was violated.
From November 2 to November 27, 2004, Relator was charged with violating five (5) conditions of his parole. Specifically: (1) On November 2, 2004, Relator was charged with violating "Rule 13 of the Conditions Governing His Release in that . . . he failed to enter BASICS . . . for Residential treatment"; (2) On November 9, 2004, Relator was charged with violating "Rule 11 of the Conditions Governing His Release in that . . . he used a controlled substance, to wit, cocaine, without proper medical authorization"; (3) On November 16, 2004, Relator was charged with violating "Rule 2 of the Conditions Governing His Release in that . . . he failed to make his office report as he was instructed to do by P.O. [Parole Officer] Howell"; (4) On November 18, 2004, Relator was charged with violating "Rule 4 of the Conditions Governing His Release in that . . . he changed his residence . . . [and] failed in his immediate and continuing duty to notify his parole office"; and (5) On November 27, 2004, Relator was charged with violating "Rule 8 of the Conditions Governing His Release in that . . . he did steal person property" (see Respondent's Exhibit B, Violation of Release Report). As a result, on November 2, 2004, Relator was declared delinquent with respect to his parole obligations and on November 30, 2004, and December 2, 2004, a Parole Warrant and Violation of Release Report were issued, respectively.
On December 6, 2004, Relator was served with a Notice of Violation. On the Notice, Relator was informed that a preliminary hearing was scheduled for December 13, 2004, and, if waived or if probable cause was found, a final hearing was scheduled for December 16, 2004. Further down the Notice were two boxes: adjacent to the first box was stated, "I do wish to have a preliminary hearing," and adjacent to the second box was stated, "I do NOT wish to have a preliminary hearing" (see Respondent's Exhibit G, Notice of Violation). The second box was checked and Relator signed and dated the Notice below.
Relator's Petition
Now, Relator claims that his constitutional rights were violated because he did not waive his preliminary hearing, but rather, wanted a preliminary hearing and when he signed the Notice, did not know that the second box was checked. Relator offers documentary evidence indicating that, although he is not blind (indeed, the documents he provided indicate that he plays basketball), he does have a visual impairment and must wear glasses in order to see.
In opposition, Respondent offers two affidavits of P.O. Howell, who states, in her first affidavit, that on December 6, 2004, when she:
served [Relator] with the Notice [of Violation], he clearly stated that he wanted to waive his preliminary hearing and proceed directly to his final parole revocation hearing. . . . Accordingly, on the Notice, I scheduled his final hearing for December 16, 2004. I also checked the box which reads "I do NOT wish to have a preliminary hearing." . . . [Relator] thereafter signed his name to the Notice in two places and handed the Notice back to me. I did not make any further marks or notations to the Notice.
(See Respondent's Exhibit H, Affidavit of Pamela Howell).
[*3]
In a supplemental affidavit, P.O. Howell provides "further evidence of the fact that it was [Relator's] express desire to waive his preliminary hearing and proceed directly to his final hearing" (see Respondent's Supplemental Exhibit A, Supplemental Affidavit of Pamela Howell). In this supplemental affidavit, the parole officer further states:
When I served [Relator] with the Notice, he clearly indicated to me that he understood his rights relating to a preliminary hearing. . . . Indeed, since this is not [Relator's] first violation of parole, he is intimately familiar with the procedures governing parole revocation hearings. At the time [Relator] waived his preliminary hearing, he repeatedly indicated to me his desire to serve as an informant for the police, and asked that I forward his request to the relevant authorities. I informed him that, at this time, it was my duty to properly serve him with the Notice and Violation of Release Report, and to properly document whether he wished to have a preliminary hearing. He then responded by saying he did not want a preliminary hearing. Upon signing the Notice acknowledging his express desire to waive his preliminary hearing, [Relator] once again indicated that it was his desire to serve as a police informant. At no point did [Relator] indicate that he wished to have a preliminary hearing.
(See Respondent's Supplemental Exhibit A).
Discussion
Exec. Law § § 259-i (3) (i) and (iv) provide that the board of parole shall afford an alleged violator a preliminary hearing and it is to be scheduled no later than fifteen days from the date of the execution of the warrant. "[The] [f]ailure to conduct a timely preliminary revocation hearing violates the parolee's right to due process." People ex rel. Matthews v. New York State Division of Parole, 95 NY2d 640, 643 (2001). Nevertheless, a parolee may waive his right to a preliminary hearing and such a waiver will be deemed effective when "there is nothing in the record to indicate that such waiver was not made knowingly and intelligently." Matter of White v. New York State Division of Parole, 60 NY2d 920, 922 (1983).
In People ex rel. Melendez v. Warden, Rikers Island Corrections Facility, 214 AD2d 301, 302 (1st Dept. 1995), the First Department held that: Once a parolee taken into custody on a parole violation warrant has unambiguously manifested his or her intention to waive the preliminary hearing to which he or she would otherwise be entitled, . . . if the parolee in subsequently commenced habeas corpus proceedings challenges the validity of the waiver, it is, or course, his or her burden to demonstrate that the waiver, however clearly manifested, was nonetheless defective because it was uninformed, unintelligent and/or involuntary. . . . A waiver, however, particularly of a constitutionally guaranteed due process [*4]entitlement such as the one here at issue, will not in the first instance be presumed . . . and it is accordingly the proponent of the waiver who must initially establish that the waiver was in fact made. This is usually done by adducing a writing clearly and unambiguously documenting the individual's intention to relinquish his or her right.
Similarly, in People ex rel. Moll v. Rodriguez, 132 AD2d 766, 767-68 (3rd Dept. 1987), lv. denied, 70 NY2d 611 (1987), the Third Department explained that:
The waiver of a preliminary hearing must be knowing, intelligent and voluntary, and the basis for the . . . determination of validity must appear in the record. . . . Upon challenging the waiver, the parolee bears the burden of showing that his waiver was not knowingly, intelligently and voluntarily made. . . . A waiver will be deemed knowing, intelligent and voluntary when the record reveals that the . . . parolee [was explained] his rights concerning the hearing and the effect of his waiver.
See also People ex rel. Washington v. New York State Division of Parole, 279 AD2d 379 (1st Dept. 2001) (court to consider whether record contained a parolee's written acknowledgment); People ex rel. Moore v. New York State Division of Parole, Misc 2d , 2002 WL 1969264 (Sup. Ct. Kings. Cty. August 22, 2002) ("Consideration of the totality of the circumstances surrounding the waiver must be considered to determine its validity.").
In Melendez, supra, the box adjacent to the request for a preliminary hearing as well as the box adjacent to the waiver of that hearing were checked on the Notice of Violation, and although there appeared to be a cross over the hearing request and a circle around the waiver, neither of these marks were initialed and there was no indication of the circumstances in which these entries were originally made and subsequently altered. Moreover, the affidavit submitted was not that of the assisting parole officer, but rather, of a different parole officer who could only state that the assisting officer ascertained after some confusion that the parolee elected to waive his preliminary hearing. By way of contrast, the parolee's affidavit in that case stated that the assisting parole officer informed him that he would be better off to waive the preliminary hearing, but he never did so. In granting the writ petition, the First Department held that:
The notice form proffered by respondent, with its contradictory entries and unexplained amendments, manifestly fails to establish the claimed relinquishment. Nor are doubts as to the waiver's authenticity, naturally arising from the highly inconclusive nature of the document by which the waiver would ordinarily be established, in any way dispelled by respondent's aforesaid affidavit which, while acknowledging petitioner's "initial confusion," sheds no light on how this "confusion" was ultimately resolved; the affiant's bare and otherwise unsupported assertion, apparently on the basis of information and belief, that the petitioner [*5]eventually waived his right to a preliminary hearing was not sufficient in the face of the strong presumption against the waiver of a constitutionally guaranteed due process entitlement to sustain respondent's claim of waiver, even to the extent of an evidentiary hearing. Accordingly, . . . respondent has not come forward with adequate prima facie evidence of the waiver upon which it would rely.
Melendez, supra, at 302-03. See also Moore, supra (right to preliminary hearing undisturbed where Notice of Violation "contains edits and changes to the original that were not initialed by [parolee].").
By way of contrast, in Moll, supra, at 768, the Third Department held that the parolee's waiver was knowing, intelligent and voluntary in that case because he was "carefully explained . . . his rights and the effect of his waiver, and [the parolee] stated that he understood. He then stated that he desired to waive the preliminary hearing and proceed to the final hearing." See also People ex rel. Walker v. Sullivan, 128 AD2d 572 (2nd Dept. 1987) ("By executing a written waiver of his right to a preliminary parole revocation hearing, . . . the petitioner effectively waived his right to challenge the . . . alleged failure to afford him a timely preliminary hearing as well as his right to relief in consequence of the . . . failure to do so."), lv. denied, 70 NY2d 613 (1987).
Conclusion
In the instant case, Respondent has clearly established that Relator's waiver was properly executed by adducing the Notice of Violation, which clearly and unambiguously documents his intention to relinquish his right to a preliminary hearing. The Notice of Violation in this case contained no contradictory, inconclusive, confusing or unexplained amendments, edits and/or changes as in Melendez, (supra), and Moore, (supra), and there is nothing on the document to cause the Court to doubt its authenticity.
In addition, Relator does not even dispute that the contents of the waiver were explained to him, nor that he understood it. Rather, he merely claims that he did not see which box was checked allegedly due to his visual impairment (although nowhere in his own affidavit does Relator claim that he was not wearing his glasses), but signed the Notice anyway. To accept Relator's claim, the Court would allow parolees similar to Relator to sign preliminary hearing waivers and then automatically reverse any revocation of parole determination against them on the ground that they did not pay attention to the substance of the document they were signing. Such a reading of Exec. Law § 259-i (3) (c) would make a mockery of not only the statute, but also the entire parole revocation process.
Moreover, the Court also notes that the documentary evidence submitted by Relator is contradictory. Namely, in his affidavit, Relator claims that the Notice was served on him in front of his attorney, Debra Sloane. However, Relator's attorney on this petition stated by way of reply affirmation that she spoke to Ms. Sloane, who indicated "that although she was present, she was completely unaware of anything that went on between relator and Parole Office Howell on December 6, 2004" (see Relator's Reply Affirmation, p. 4). By way of comparison, the Court notes that the affidavits submitted by Officer Howell were not only consistent, but extraordinarily [*6]detailed regarding Relator's conduct and statements on December 6, 2004, including his desire to serve as a police informant.
Lastly, despite Relator's contention to the contrary, the fact that a date and time for the preliminary hearing were scheduled has no effect on Relator's waiver of that hearing. Indeed, this only further establishes that Respondents complied with their duties under Exec. Law § 259-i (3) (c) (i), as the statute only requires that such a preliminary hearing be "afforded" and "scheduled" to a parolee such as Relator. This was done in this case and the only reason the preliminary hearing was not, in fact, held was due to Relator's signed waiver.
Therefore, under the totality of the circumstances, it is clear that Petitioner waived his preliminary hearing.
ORDERED, that the petition for a writ of habeas corpus is, in all respects, dismissed.
The foregoing constitutes the opinion and decision of the Court.
Dated: Bronx, New York
June 14, 2005
DOMINIC R. MASSARO,
Justice of the Supreme Court
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