People ex rel. Banks v Warden

[*1] People ex rel. Banks v Warden 2007 NY Slip Op 51380(U) [16 Misc 3d 1111(A)] Decided on July 17, 2007 Supreme Court, Bronx County Dawson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 1, 2007; it will not be published in the printed Official Reports.

Decided on July 17, 2007
Supreme Court, Bronx County

The People of the State of New York, ex rel. Warren Banks, Petitioner,

against

Warden, Rikers Island Correctional Facility and New York State Division Of Parole, Respondents.



51375/07

Joseph J. Dawson, J.

Relator Warren Banks ("Banks") petitions for a Writ of Habeas Corpus on the ground that he has not received his final parole revocation hearing within 90 days of waiving his right to a preliminary hearing pursuant to Executive Law Section 259-i(3)(f)(i). The Writ is denied for the reasons set forth below.

On February 17, 2005, Banks was sentenced to a prison term of from two to four years in Supreme Court, Sullivan County for Criminal Possession of a Controlled Substance in the Fifth Degree. Penal Law § 220.06. Banks was released to parole supervision on December 19, 2005. Verified Petition of Osvaldo Caban, Jr., Esq. Sworn to May 22, 2007 ("Petition"), at ¶ 5. On June 21, 2006, Banks was taken into custody and placed in the Westchester County Jail pursuant to a parole warrant. Petition, at ¶ 8. On that same date, Banks waived his right to a preliminary hearing and was served with a Notice of Violation. Id.

It is undisputed that, on July 25, 2006, Banks did, in fact, have a parole revocation hearing where he was represented by counsel. At said hearing, Banks's counsel requested that Banks's final hearing be placed on the "Control Calendar," which is also known as the "K Calendar." Supplemental Affirmation of Andrew Meier, Esq. dated June 7, 2007 ("Supp. Meier Aff."), Ex. 2 at p. 4. According to Respondents, the Control Calendar is an administrative device that "serves to not prejudice parolees who have pending criminal matters by indefinitely adjourning their parole revocation hearings" pending resolution of the underlying criminal matter. Affirmation of Andrew Meier, Esq. dated May 29, 2007 ("Meier Aff."), at ¶ 11. Parole hearings on the Control Calendar are scheduled for December 25. Of course, no hearings are conducted on that date, which is merely used so that no case "gets lost in the system." Supp. Meier Aff., Ex. 2 at p. 4. To have a final parole hearing, a parolee must request that his matter [*2]be taken off the Control Calendar. Id. At the hearing on July 25, Banks was explicitly warned that his final parole hearing would remain on the Control Calendar unless he or his attorney notified the Division of Parole that Banks's hearing should be advanced. Supp. Meier Aff., Ex. 2 at p. 5. Banks was further advised that he would not receive his parole hearing within 90 days and that the 90 day deadline of Executive Law Section 259-i(3)(f)(i) would be indefinitely tolled. Id. at 5-6. Banks consented to these conditions. Id. Banks requested that his case be placed on the Control Calendar because he had an open case in New York County. Petition, at ¶ 8.

On September 5, 2006, Banks had another parole hearing in the Westchester County Jail, at which his attorney again requested that his case be placed on the Control Calendar. Supp. Meier Aff., Ex. 3. at pp. 2-3. Banks was again advised that his matter would not be removed from the Control Calendar without him or his attorney notifying the Division of Parole. Id. at 3-4.

On October 4, 2006, Banks was transferred to Rikers Island. Petition, at ¶ 8. It appears that Banks's open criminal court case was dismissed on or about November 6, 2006. Petition, Ex. C. However, there is no evidence or allegation that either Banks or his attorney ever requested that his parole revocation matter be removed from the Control Calendar. According to Respondents, once December 25, 2006 had passed without a request to remove Banks's case from the Control Calendar, his final revocation hearing was automatically rescheduled for December 25, 2007. Meier Aff., at ¶ 12.

Pursuant to Executive Law Section 259-i(3)(c)(i), an alleged parole violator is entitled to a preliminary parole hearing within fifteen days of being taken into custody. If probable cause is found at the preliminary hearing to believe that conditions of parole have been violated, the alleged violator is entitled to a final parole hearing upon at least fourteen days written notice. Executive Law § 259-i(3)(f)(iii). This final hearing must be held within 90 days of the probable cause determination unless the alleged violator requests or consents to an adjournment of the hearing. Executive Law § 259-i(3)(f)(i). Failure to comply with these statutory requirements results in vacatur of the parole warrant, and a return to parole supervision for the alleged violator. See People ex rel. Melendez v. Warden, Rikers Island Correctional Facility, 214 AD2d 301, 303 (1st Dept. 1995); People ex rel. Betancourt v. Warden, 149 AD2d 356, 357 (1st Dept. 1989).

It has been held that the failure to conduct a final parole revocation hearing within the 90 day period provided for by Executive Law Section 259-i(f)(iii) is unreasonable per se. People ex rel. Levy v. Dalheim, 48 NY2d 1019, 1020 (1980), aff'g, 66 AD2d 827 (2d Dept. 1978). Nevertheless, where, as here, a parolee knowingly, clearly and unequivocally consents on the record to the indefinite adjournment of his parole matter pending the disposition of an underlying case, the courts have found that the 90 day deadline may be extended. People ex rel. Dennard v. Meloni, 151 AD2d 963 (4th Dept.), appeal denied, 74 NY2d 916 (1989); People ex rel. Vanderburgh v. Coombe, 102 AD2d 951 (3rd Dept. 1984).

The Court notes that in People ex rel. Cambell v. Warden of Rikers Island Correctional Facility, 186 Misc 2d 41 (Sup. Ct. Bronx Co. 2000) and People ex rel. Murphy v. Warden, 4 Misc 3d 1042(A) (Sup. Ct. Bronx Co. 2004), the courts sustained Writs of Habeas Corpus where parolees' cases were placed on the Control Calendar. Those cases are distinguishable because in both it was determined that inadequate proof existed that the parolees waived their right to have a final parole hearing within 90 days. See Murphy, 4 Misc 3d 1042(A) at *1; Campell, 186 Misc [*3]2d at 44-45. Here, by contrast, the record unequivocally demonstrates that Banks, in the presence of his counsel, was warned of, and consented to, the consequences of the placement of his parole matter on the Control Calendar. Supp. Meier. Aff. Exs. 2 and 3. Hence, the Court finds that Banks knowingly, voluntarily and unequivocally waived his right to have a final parole hearing to determine the merits of his case within 90 days.

The foregoing constitutes the Decision and Order of the Court.

Dated:July 17, 2007

Bronx, New York________________________

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