People ex rel. Ortiz v Poole

[*1] People ex rel. Ortiz v Poole 2006 NY Slip Op 50385(U) [11 Misc 3d 1064(A)] Decided on March 17, 2006 Supreme Court, Seneca County Bender, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 17, 2006
Supreme Court, Seneca County

PEOPLE ex rel. ANTHONY ORTIZ, Petitioner,

against

T. POOLE, SUPERINTENDENT OF FIVE POINTS CORRECTIONAL FACILITY, NYS DIVISION OF PAROLE, NYSDOCS, Respondents.



01-R-2091



Anthony Ortiz, Petitioner

Hon. Eliot Spitzer, Attorney General

by Emil J. Bove, Jr., Assistant Attorney General

Dennis F. Bender, J.

This Court executed a writ of habeas corpus on March 15, 2006, directing the respondent T. Poole to produce the petitioner before the Court on March 16, 2006. The following facts are not controverted.

The petitioner was arrested for petit larceny on April 22, 2005. At the time he was on parole, and there existed an outstanding warrant for violation of the terms of it. On May 2, 2005 a final parole revocation hearing was completed relative to the outstanding violation. The petitioner plead guilty with the understanding he would be revoked and restored to parole supervision, with initial participation in the Willard Drug Treatment Program.[FN1] Such was the disposition.

The petit larceny charge was resolved on August 15, 2005. The petitioner states under oath he was sentenced to time served. The respondents do not deny the date of the disposition, but deny upon "information and belief" regarding the sentence. Pursuant to a criminal record received from Parole Central Files provided on the return date, the sentence was "OP", believed to be an order of protection. A portion of a New York State Criminal History Record shows the sentence to be "Order of Protection Sentence Date: August 15, 2005 Term: 90 Day(s)". What [*2]this means is not clear, but at best or worst depending on perspective, the petitioner's detention for the sixty to ninety days following August 15, 2005 was as a result of the misdemeanor conviction. Assuming the unlikely loss of a one-third reduction for good time, such would have ended, and rendered the petitioner eligible for transfer to Willard on November 13, 2005.

The Court notes the Division of Parole has had months to establish a clear history of the petitioner's record. He was revoked and restored, subject to completion of the Willard program last May. His petit larceny charge was resolved last August. Apparently, the Division is now telling their counsel they need "more time" to figure out the petitioner's history. In light of the liberty interests at stake, the Division's position is patently unreasonable.

The petitioner was not delivered to the Willard Campus until January 31, 2006. He refused to participate because of the length of time that had passed while he awaited delivery.

At a minimum the petitioner was detained without explanation from November 13, 2005 through January 31, 2006, a period in excess of two and one-half months. In reality, it is more likely he was in fact so held for five and one-half months.

A new parole violation was filed on February 7, 2006, predicated upon the petitioner's refusal to participate in the Willard program. A final hearing was held on March 1, 2006, at which the petitioner admitted with an explanation, such being again based upon the delay in the transfer of him to Willard. He was found in violation and a ten month hold was imposed.

The following day the petitioner mailed his application for a writ to this Court. He likewise, pursuant to testimony at the hearing, has appealed the parole revocation.

The respondents argue the petitioner is not entitled to release for two reasons. The first is that whatever the merit of the argument, it was subsumed into his guilty plea at the March 1, 2006 hearing. Secondly, the respondents offer, quite correctly, that neither Executive Law section 259-i(3) nor 9 NYCRR section 8005.20(c)(2) establish any time frame in which a parole violator must be transferred from a local facility to Willard. They also correctly note that CPL section 410.91 which provides for delivery to Willard within ten days only applies to those judicially sentenced to parole with participation in the Willard program.[FN2] I first address the later argument.

Following its recitation of what the law does not provide regarding timeliness, the respondents' Return cited this Court's decision in Ayala v Williams, (7 Misc 3d 1025(A)) for the proposition that the State is entitled to a reasonable time to transfer a parolee to the Willard Program. This Court further noted in that matter however that it " is unreasonable to presume that the Parole Board has unfettered discretion to withhold delivery to the Willard facility as long [*3]as it chooses. Certainly judicial review of the reasonableness of a delay is appropriate." Id, at footnote 2. This Court now holds that once revoked and restored subject to participation in the Willard Program, a parolee has a due process right to be transferred to that program forthwith absent valid, enunciated reasons for not doing so. An unexplained detention of two and one-half to five and one-half months or more clearly violates this holding. This Court and others have expressed concern over the unexplained detentions of inmates in similar circumstances. People ex rel. Angelos v. Poole, 9 Misc. 2 772 {9 Misc 3d 772} (Seneca Co. Sup Ct., 2005); People ex rel. Dotterer v. Warden of Rose M. Singh Center, an apparently unpublished decision, Index 75057-05 (Bronx Ct. Sup. Ct., 2005).

But what of the argument that the petitioner's claim is subsumed into the disposition of the parole violation hearing on March 1, 2006? A final parole revocation hearing had not been held in the prior cases. The argument that it is so subsumed is Kafkaesque.

The petitioner was faced with one of two choices. On the one hand, he could have agreed to participate in the Willard Program. Pursuant to established law however, he would have then been considered to be on parole and not in custody, and thus would have been precluded from seeking habeas corpus relief. People v. Morejon, 183 Misc 2d 435 (Bronx Co., 1999). His second option was the route he took - refusal to participate, be found guilty of violating his parole for non-participation, and, pursuant to the respondents' argument, likewise be precluded from seeking habeas corpus relief because his prior claim is subsumed by the new violation. To so hold would render the petitioner's due process rights meaningless as it would eliminate the only effective safeguard which exists. The Court finds the petitioner expressly preserved this issue when he explained to the hearing officer his refusal to enter Willard was based upon the unreasonable length of time respondents had him incarcerated before the transfer to Willard Drug Treatment Campus.

Predicated upon all the foregoing, this Court determines that the petitioner is illegally detained the recent parole revocation being based upon a refusal justified by the violation of his due process rights. The petitioner is entitled to be released forthwith, which the Court interprets to mean within ten days.

This constitutes the decision and judgment of the Court.

Dated: March 17, 2006

__________________________________________

Hon. Dennis F. Bender, Acting S.C.J. Footnotes

Footnote 1:The Willard Drug Treatment Program is a ninety-day program with intensive counseling, education and regimentation similar to that of a "boot camp".

Footnote 2:This lack of legislative or regulatory guidance is unfortunate. If time frames were provided, proceedings such as this would likely be avoided.