Matter of Durden v Woods
Annotate this CaseDecided on November 19, 2007
Supreme Court, Franklin County
In the Matter of the Application of Laroy Durden, Petitioner, For a Judgment Pursuant to Article 70 Of the Civil Practice Laws and Rules
against
Robert K. Woods, Superintendent, Upstate Correctional Facility, and New York State Division Of Parole, Respondents.
2007-0891
S. Peter Feldstein, J.
This is a habeas corpus proceeding that was originated in Supreme Court, Bronx County, by the petition of Laroy Durden, verified on April 21, 2007. By order dated June 20, 2007, the Supreme Court, Bronx County (Hon. J. Fisch) directed that venue be transferred from Bronx County to Franklin County. The papers originally filed in Bronx County were received in the Franklin County Clerk's office on July 2, 2007, and in chambers on July 16, 2007. Petitioner, who is an inmate at the Upstate Correctional Facility, is challenging his continued incarceration in the custody of the New York State Department of Correctional Services. The Court issued an Order to Show Cause on July 23, 2007. As part of that Order to Show Cause it was directed that Robert K. Woods, Superintendent, Upstate Correctional Facility, be substituted for the Warden, Rikers Island Correctional Facility, as one of the named respondents. The Court has received and reviewed respondents' Return, dated August 31, 2007, as well as petitioner's Reply thereto, filed in the Franklin County Clerk's office on September 10, 2007.
On September 24, 2004, the petitioner was sentenced in Supreme Court, Kings County, to a determinate term of imprisonment of 2 ½ years, with 3 years of post-release supervision, upon his conviction of the crime of Assault 2°. The petitioner was received into DOCS custody on September 30, 2004, certified as entitled to 779 days of jail time credit. He was conditionally released from DOCS custody to post-release supervision on October 22, 2004. On November 27, 2006, however, the petitioner was served with a Notice of Violation/Violation of Release Report charging him with violating the conditions of his release in six separate respects. Also on September 27, 2006, the petitioner waived preliminary hearing. Following a series of adjournments, a final parole revocation hearing was conducted at Rikers Island on April 20, 2007. At the conclusion of the final hearing one parole violation charge was sustained while the others were withdrawn by the division. The petitioner's parole was revoked with a sustained delinquency date of October 19, 2006. [*2]In addition, the Administrative Law Judge directed that the petitioner be held to the maximum expiration date of his sentence. Although petitioner's notice of administrative appeal was received by the Division of Parole Appeals Unit on May 21, 2007, his administrative appeal was never perfected. This proceeding ensured.
Citing, inter alia, People ex rel Levy v. Dalsheim, 48 NY2d 1019, the petitioner maintains that his due process rights were violated when he was not afforded a final parole revocation hearing within 90 days of his November 27, 2006, waiver of preliminary hearing.
Under the provisions of Executive Law §259-i(3)(f)(i) final parole "[r]evocation hearings shall be scheduled to be held within ninety days of the probable cause determination." The petitioner's November 27, 2006, waiver of his right to a preliminary hearing was equivalent to a probable cause determination for Executive Law §259-i(3)(f)(i) purposes. See People ex rel Gray v. Campbell, 241 AD2d 723. There is no dispute that the originally-calculated outside date for conducting petitioner's final parole revocation hearing was February 25, 2007. Executive Law §259-i(3)(f)(i), however, goes on to provide that ". . . if an alleged violator requests and receives any postponement of his [final] revocation hearing, or consents to a postponed [final] revocation proceeding initiated by the board, or if an alleged violator, by his actions otherwise precludes the prompt conduct of such proceedings, the [ninety-day] time limit may be extended." Where, as here, the final parole revocation hearing is not conducted within the originally-calculated ninety-day time frame, the Division of Parole bears the burden of demonstrating that the failure to conduct the hearing within such time frame was attributable to one or more of the exceptions set forth in Executive Law §259-i(3)(f)(i). See People ex rel Brown v. New York State Division of Parole, 70 NY2d 391 at 399-400, Hirniak v. Sheriff of Dutchess County, 174 AD2d 619 and Oquendo v. Hammock, 155 AD2d 959.
In their Return the respondents concede that ". . . the record is distressingly unclear with respect to the scheduling and eventual holding of the final [parole revocation] hearing on April 20, 2007, long after the initial final outside date of February 25, 2007." A review of that record reveals that there were as many as nine "appearances" in connection with petitioner's final parole revocation hearing before April 20, 2007. The record, however, includes transcripts of only two of those pre-April 20, 2007, appearances (December 9, 2007, and February 13, 2007). In addition, the record includes the sometimes cryptic notes of the Administrative Law Judge (ALJ) with respect to four additional dates (January 9, 2007, January 30, 2007, March 9, 2007, and April 12, 2007). The remaining three possible appearance dates (April 5, 2007, April 16, 2007, and April 18, 2007) are simply referenced in one fashion or another, after the fact, in the transcript of the April 20, 2007, final parole revocation hearing.
In their Return the respondents make no effort to systematically analyze what appears to have transpired on the various appearance dates so as to quantify periods of time chargeable to the petitioner that might serve to extend the ninety-day deadline as set forth in Executive Law §259-i(3)(f)(i). The respondents do note that the ALJ purported to determine that there were three, separate 14-day time periods chargeable to the petitioner (December 27, 2006, to January 9, 2007; January 31, 2007, to February 13, 2007; and February 14, 2007, to February 27, 2007). There may well be problems, however, with the latter two determinations, both of which arose in connection with adjournments necessitated by the failure of petitioner's counsel to appear as scheduled. In both instances [*3]it appears that the ALJ adjourned the proceedings beyond the next available date. The transcript of the Tuesday, February 13, 2007, appearance is illustrative on this point. The parole revocation specialist, who was only available on Tuesday's and Friday's, indicated that the petitioner might be "borrowed" in connection with then pending federal charges as of February 20, 2007, and therefore requested an adjourned date in early March. The petitioner, however, suggested "this Friday" (February 16, 2007). The Administrative Law Judge responded as follows: "There's a procedure, the procedure is when I have at least two weeks I usually grant two weeks before we have the hearing." The Administrative Law Judge then went on to adjourn the final parole revocation hearing to March 9, 2007, and purported to charge the petitioner for a full two weeks of the three-week adjournment (to February 27, 2007) because his attorney was not present on February 13, 2007. In People ex rel Brown v. New York State Division of Parole, 70 NY2d 391, however, the Court of Appeals ruled that it was improper to charge an alleged parole violator with a full, two-week adjournment where there was an available hearing date only one week away. According to the Court of Appeals, ". . . when a parolee's counsel is not given advanced notice that the Division of Parole is bypassing the first available hearing date, any delay attributable to postponing the hearing beyond the first available date should be chargeable to the Division of Parole." Id at 402.
In any event, even if all 14 days of each of the three adjournments identified by the ALJ as chargeable to the petitioner were, in fact, properly chargeable to the petitioner, the total of 42 days would only extend the outside date for conducting the final parole revocation hearing from February 25, 2007, to Sunday, April 8, 2007. Under such circumstances, it still would have been necessary to conduct the final parole revocation hearing on or before April 9, 2007. See General Construction Law §25-a(1) and People ex rel Gray v. Campbell, 241 AD2d 723. Obviously, even that extended deadline was not met when the final parole revocation hearing was conducted on April 20, 2007. As alluded to previously, moreover, the respondents have provided no analysis tending to demonstrate that any other specific time period is chargeable to the petitioner so as to further extend the ninety-day window for conducting the final parole revocation hearing.
Based upon all of the above, it is, therefore, the decision of the Court and it is hereby
ADJUDGED, that the petition is granted, without costs or disbursements;
and it is further
ORDERED, that the respondent shall forthwith re-release petitioner from DOCS
custody to post-release supervision subject to such conditions as are deemed appropriate.
Dated:November 19 , 2007, at
Indian Lake, New York.__________________________
S. Peter Feldstein
Acting Supreme Court Justice
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