People ex rel. Vidal v New York State Div. of Parole

[*1] People ex rel. Vidal v New York State Div. of Parole 2007 NY Slip Op 51360(U) [16 Misc 3d 1109(A)] Decided on June 27, 2007 Supreme Court, Bronx County Dawson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2007
Supreme Court, Bronx County

People of the State of New York, ex Rel. Luis Vidal, Petitioner,

against

New York State Division of Parole, Respondent.



75087/07

Joseph J. Dawson, J.

Relator Luis Vidal ("Vidal") petitions for a Writ of Habeas Corpus following a preliminary parole hearing on April 9, 2007, at which it was determined that there was probable cause to believe that Vidal had violated one of the conditions of his parole.

Vidal is on parole for Criminal Sale of a Controlled Substance in the Third Degree. On March 29, 2007, the New York State Division of Parole ("Respondent") issued a parole violation warrant against Vidal for violating a condition of his release that prohibited him from having any contact with Janice Garcia ("Garcia"). See Verified Petition of Jeff Lee, Esq. dated April 21, 2007 ("Petition"), Ex. A. At the parole hearing, Vidal was charged with violating the condition by going to the school of Garcia's son, Nicholas Romero ("Romero"), on March 22, 2007 at approximately 2:50 PM. The condition at issue required Vidal "not to have any contact with Janice Garcia," including third-party contact. Petition, Ex. B.

At the parole hearing, Parole Officer Roger Chung ("Chung") testified that he personally advised Vidal of this condition. In addition, Ms. Nydia Oroacho ("Oroacho"), the aunt of Garcia, testified that Vidal had lived with Garcia and that she was familiar with his appearance. Oroacho testified that it was her responsibility to pick up Romero from school every day, and that she had seen Vidal inside the school yard at 3:00 PM on March 22, 2007. There was no communication between the two or between Vidal and Romero. Id. at 9-12. Vidal was represented by counsel at the parole hearing, who was permitted to cross-examine Oroacho.

Vidal also testified at the parole hearing. He denied being at the school on the day in question, testified that he never tried to contact Romero, and admitted contacting Garcia from prison in July 2006, but not on the day in question. Id. at 15-20.

It is "well-established that habeas corpus is a proper remedy for review of parole revocation proceedings." People ex rel. Van Fossen v. Dillon, 72 AD2d 166, 168 (4th Dept. [*2]1980). The standard of review, however, is limited. Upon "finding that there was evidence in the record which, if believed, was sufficient to support a finding of probable cause and that required procedural rules were followed, the court's power to review is exhausted and it must dismiss the writ." Id. at 168-69; People ex rel. Grimaldi v. Warden, 174 AD2d 497 (1st Dept.), appeal denied, 78 NY2d 858 (1991); Zientek v. Herbert, 199 AD2d 1075 (4th Dept. 1993). Alternatively, if there is insufficient evidence in the record to support a finding of probable cause, then the court should grant the writ, and the petitioner should be restored to parole. People ex rel. Saafir v. Mantello, 163 AD2d 824, 825-26 (2d Dept. 1991).

It is not disputed that the required procedural rules were followed in this case. The only question before the Court is whether there was sufficient proof to establish probable cause to believe that Vidal violated the special condition requiring him "not to have contact with Janice Garcia".

The question must be answered in the negative. The special condition prohibited Vidal from having any contact with Garcia, and it is undisputed that Vidal did not any have contact with Garcia at the school. It is undisputed that Vidal did not ask Oroacho to give a message to Garcia at the school. It is undisputed that Vidal did not ask Romero to give a message to Garcia at the school. Indeed, it is undisputed that Vidal did not even speak to Oroacho or Romero.

The most that can be inferred from the hearing evidence is that Vidal might have attempted to violate the condition by being at a place where he suspected Garcia might be. He did not have contact with Garcia, however, because it was Oroacho's responsibility to pick up Garcia's son from school every day. Supp. Meier Aff. Ex. D at 11. While Vidal might not have been aware that Oroacho picked up Romero at school, the parole violation cannot be premised solely upon Vidal's hope that Garcia would be there. There simply is no evidence that Vidal had direct or third-party contact with Garcia in violation of the special condition. Were we to hold otherwise, Vidal could be found to have violated the special condition merely by being any place that Garcia might be. To interpret the special condition so broadly would violate due process, as it would not give a "person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

It may very well be appropriate for Respondent to direct Vidal to stay away from all members of Garcia's household, including their schools or places of employment. However, that is a matter for parole, not this Court. The release condition here simply was not violated, according to the proof elicited at the hearing. Cf. People v. Gonzalez, 200 A.D. 759, 760 (2d Dept. 1994) (no contempt where defendant did not go to daughter's home but merely walked by it); People v. Gunatilaka, 156 Misc 2d 958, 963 (Crim. Ct. NY Co. 1993) (no contempt where defendant was across street from complainant's office); People v. Pucilowski, 4 Misc 3d 1019(A) (County Ct. Westchester Co. 2004) (no contempt where defendant had unplanned encounter with complainant's co-worker).[FN1] [*3]

Accordingly, the Petition is granted and the Writ is sustained. In the absence of any holds or detainers other than for this parole violation, it is directed that Vidal be released and restored to parole supervision forthwith - - subject to his compliance with all conditions and special conditions of parole, including any additional conditions that parole may lawfully impose as a result of any concerns for Garcia, her son, or any other members of her household.

The foregoing constitutes the Decision and Order of the Court.

Dated:June 27, 2007

Bronx, New York________________________

Joseph J. Dawson, A.S.C.J. Footnotes

Footnote 1:To the extent that there is evidence in the record suggesting that Vidal sent text messages to Garcia, Respondent elected not to proceed on said charges at the preliminary hearing, and the Court cannot consider them. People ex rel. Goodman v. New York State Division of Parole, 9 Misc 3d 1112(A) at * 3 (Sup. Ct. Bronx Co. 2005).