People v Warden

[*1] People ex rel. Murphy v Warden of Penitentiary of City of N.Y. 2004 NY Slip Op 51016(U) Decided on August 10, 2004 Supreme Court, Bronx County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 10, 2004
Supreme Court, Bronx County

The PEOPLE OF THE STATE OF NEW YORK ex rel. David Murphy, Petitioner,

against

Warden of the Penitentiary of the City of New York, Rikers Island, New York, Respondent.



1287-04

Richard Lee Price, J.

Petitioner was on New York State parole when federal authorities arrested and charged him with possession of a handgun in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). This arrest also resulted in the issuance, on January 28, 2000, of a New York State Parole Violation Warrant, which was served on him that day.

A preliminary parole violation hearing was held on February 11, 2000, and probable cause for the violation was found. A final hearing was then scheduled, originally for March 7, 2000 (with an outside date of May 11, 2000), but it was repeatedly adjourned until, on December 25, 2000, Petitioner's case was put on the "K-calendar", explained as an administrative device whereby the final hearing was adjourned indefinitely pending resolution of the underlying federal prosecution. Thereafter, on February 15, 2001, upon his plea of guilty, Mr. Murphy was convicted and sentenced to 57 months incarceration in federal prison.

Petitioner makes several claims. Listed in chronological order, the first is that the adjournments from the initial date for his final hearing, March 7, 2000, to the date he was placed [*2]on the K-calendar, December 25, 2000, altogether exceed the 90 day maximum time period specified in Executive Law § 259-i(3)(f)(i). Second, he contends that he was never informed of the significance of being placed on the "K-calendar", i.e., he alleges that he was not aware that by consenting to this he was waiving the 90-day time strictures of the Executive Law. Third, Petitioner argues that although he was in federal custody, because he was housed in a federal facility located in New York, the Manhattan Federal Detention Center, from at least March 21, 2000 to January 24, 2003, there was no reason for the Division of Parole to delay holding his final hearing.

The Respondent Division of Parole responds as follows to each claim. As to the initial timeliness in holding the final hearing, the Division concedes that it is chargeable with 84 days (February 16 to March 21, 2000 [40 days]; April 6 to May 2, 2000 [26 days]; and April 15 to April 19, 2004 [4 days]), and the rest of the adjournments are chargeable to petitioner.

Respondent further argues that the placement of a parolee's case on the "K-calendar" is an administrative "device that was implemented for the benefit [of] parolees who have an interest in adjourning their final hearing indefinitely in order to resolve a pending criminal charge." In support of this statement, Respondent cites People ex rel. Campbell v. Warden, 186 Misc.2d 41 (Sup. Ct. Bronx Co. 2000), and further argues that although the hearing minutes are not available, "he was placed on the K-calendar for his benefit." However, a reading of the cited case shows that while Justice Mogolescu recognized the K calendar as the open-ended control calendar Respondent describes, he specifically did not condone the Division's practice of conducting off-the-record discussions with a parolee about the relative benefits of being placed on this calendar. "[I]n this case there was no conversation on the record which reflects that petitioner was fully informed of the ramifications of the placement of his case onto the fictitious K calendar and that, as a result, the case would remain there in perpetuity until petitioner took affirmative steps to have his case heard. In the absence of there being any proof on the record that petitioner was made aware of the ramifications of the placement of the matter on the K calendar, this court cannot now find that petitioner knowingly and voluntarily waived his right to have his final parole hearing within the requisite statutory time frame." Id., 186 Misc.2d. 2d at 44-45.

While apparently the Division now does record these conversations, Respondent asserts that the minutes for Petitioner are not available because "the Division keeps final hearing transcripts for three years." However, in response to Petitioner's third point (regarding his federal custody) Respondent makes clear that communication with Petitioner about conducting the final hearing was ongoing and it was anticipated that once released from federal custody the issue of Petitioner's final hearing would be revived. Because it makes no sense that records of an active case would be discarded merely because they attained the advanced age of three years, the writ must be sustained.

Given this conclusion, it is not necessary to address Petitioner's final contention regarding his availability to the Division for purposes of conducting the final hearing, because the federal authorities were housing him in Brooklyn. Were this Court to reach the issue, however, it is clear that the Court of Appeals' decision in People ex rel. Matthews v. New York State Division of Parole, 95 N.Y.2d 640 (2001), is controlling.

The Writ is sustained, the parole warrant lodged against Petitioner is dissolved, and the [*3]Division of Parole is directed to restore Petitioner to parole supervision forthwith.

This constitutes the Decision and Order of the Court.

Dated: August 10, 2004

___________/S/____________

Richard Lee Price, J.S.C.