People ex rel. Gonzalez v New York State Div. of Parole
Annotate this CaseDecided on July 9, 2007
Supreme Court, Bronx County
The People of the State of New York, ex rel. Michael Gonzalez, Petitioner,
against
New York State Division of Parole, Respondent.
75088/07
Joseph J. Dawson, J.
Relator Michael Gonzalez ("Gonzalez") petitions for a Writ of Habeas Corpus seeking vacatur of a parole warrant and restoration to parole supervision on the ground that his right to due process was violated. For the reasons set forth below, the petition is denied.
Gonzalez was on parole for Criminal Possession of a Controlled Substance in the Third Degree, which supervision is scheduled to last until March 28, 2012. On February 21, 2007, the New York State Division of Parole ("Respondent") lodged parole warrant number 434757 and extradited Gonzalez from New Jersey, where he had been held since November 2006. See Verified Petition of David Werber, Esq. dated April 23, 2007 ("Petition"), at ¶ 7. A preliminary parole hearing was held on March 8, 2007 upon the charge in the warrant that Gonzalez had failed to report to his parole officer since November 8, 2006. Id. at ¶ 8. At said hearing, it was determined that there was no probable cause to sustain the parole warrant because Respondent acknowledged that it knew Gonzalez had been incarcerated in another state. Id. at 12.
Two days before the preliminary hearing, Respondent prepared a second parole warrant, number 434782, which it then lodged against Gonzalez after Respondent did not meet its burden at the preliminary parole hearing. Id. at ¶ 12-13. The second warrant against Gonzalez charged him with violating the condition of parole directing him to not to leave New York City without written permission, and that Gonzalez had violated that condition by being arrested in Boston on November 3, 2006. On March 19, 2007, a second preliminary parole hearing was held, at which it was determined that there was probable cause to believe that Gonzalez had left New York City without permission. Id. at ¶ 14.
Gonzalez alleges that his right to due process was violated when Respondent, having had the first parole warrant dismissed, lodged the second parole warrant containing "new" charges when there was no legitimate reason for not including all the violations together in one warrant. [*2]Id. at ¶ 5. In support thereof, Gonzalez cites the case of People ex rel. Howard v. Warden, Rikers Island Corrections Facility, 14 Misc 3d 874 (Sup. Ct. Bronx Co. 2007) (Farber, J.). In Howard, the court sustained a Writ brought by a parolee under supervision in Westchester County who was first violated for committing a robbery in the Bronx, and then a second time for leaving Westchester County. The court in Howard held:
In sum, where the Division [of Parole] has a legitimate reason for not including a specification in an initial warrant, even if it arises out of the same incident, there is no rule which requires that all specifications be included at once. Where, however, as here, all of the violations arise out of the same incident, and there is no legitimate reason for not including all the violations together in one warrant, as a matter of due process and fundamental fairness I hold that the charges should be brought together.
Howard, 15 Misc 3d at 880-81 (emphasis added).
In response, Respondent points out that Howard is distinguishable because the violations complained of in the two warrants do not arise out of the same incident. Respondent points out that the first warrant was based on Gonzalez's failure to report due to his incarceration in New Jersey. The second warrant was based on Gonzalez's leaving New York City as evidenced by his arrest in Boston, which, of course, is in Massachusetts. As the two parole warrants arose from different incidents, this Court finds that Howard does not apply. Further, Howard acknowledges that "there is no rule which requires all specifications be included at once." 15 Misc 3d at 880-81. Finally, Gonzalez is on parole until 2012. As the First Department stated, "[s]ince respondent executed the warrant well before the expiration date of petitioner's underlying sentence, the execution was timely." People ex rel. Cross v. New York State Div. of Parole, 261 AD2d 108, 108 (1999). Accordingly, Gonzalez's petition for a Writ of Habeas Corpus is denied.
The foregoing constitutes the Judgment of the Court.
Dated:July 9, 2007
Bronx, New York________________________
Joseph J. Dawson, A.S.C.J.
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