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

[*1] People ex rel. Wingate v New York State Div. of Parole 2008 NY Slip Op 51666(U) [20 Misc 3d 1129(A)] Decided on August 4, 2008 Supreme Court, Bronx County Clancy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2008
Supreme Court, Bronx County

The People of the State of New York ex rel. Blake Wingate, Petitioner,

against

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



340213-08



Pro se Petitioner:

Mr. Blake Wingate

East Elmhurst, NY 11370

Counsel for the Respondent:

Andrew Meier, Esq.

Assistant Attorney General

New York State Attorney General's Office

120 Broadway

NY, NY 10271

212-416-8305

Margaret L. Clancy, J.

Petitioner moves, pro se,[FN1] by writ of habeas corpus for an order vacating parole [*2]revocation warrant #433955 and releasing him to parole supervision. Petitioner alleges, for a third time, that his final revocation hearing was untimely. He also alleges that his statutory and constitutional right to counsel was violated by the hearing officer presiding over the final revocation hearing. As petitioner is not entitled to immediate release, for the reasons set forth below, petitioner's request for habeas relief is converted to a proceeding pursuant to CPLR Article 78. For the following reasons, petitioner's application is granted to the extent that a new hearing is ordered.

Petitioner was released to parole supervision on August 14, 2006. He was arrested for misdemeanor drug possession on February 2, 2007, and he pleaded guilty to Disorderly Conduct in relation to this arrest on February 8, 2007. Petitioner was declared delinquent with respect to his parole obligations on February 21, 2007, partly due to the new arrest. The parole revocation warrant was lodged on April 4, 2007. Petitioner was also rearrested on April 4, 2007, and charged with Criminal Possession of Controlled Substance in the Seventh Degree and Resisting Arrest. That criminal case is still pending in Queens County. A preliminary revocation hearing was held on April 16, 2007, after which a probable cause determination was made. Petitioner's final hearing spanned three dates, beginning on August 8, 2007, continuing on September 12, 2007, and concluding on October 23, 2007. Petitioner was charged with failing to report for a scheduled office visit, failing to notify his parole officer of his arrest on February 2, 2007, and possessing drug paraphernalia (two crack pipes) in relation to that arrest. He was also charged with no longer residing at his approved residence.

The arresting officer from the February 2, 2007 drug arrest began testifying on August 8, 2007. (See People ex rel Wingate v Warden, Sup Ct Bronx Co, Index No. 51727-07, p4 [Oct 22, 2007, Marcus, J.]). Petitioner's first habeas writ was still pending, and petitioner requested an adjournment to September 12, 2007. (See People ex rel Wingate v Warden, Sup Ct Bronx Co, Index No. 51727-07, p4 [Sept 19, 2007, Marcus, J.]). On September 12, 2007, the arresting officer was recalled to continue testifying. The matter was then adjourned to October 23, 2007 for the respondent's last witness, petitioner's parole officer, to testify. The parole officer testified regarding petitioner's failure to report for a scheduled visit and his failure to report his arrest of February 2, 2007.

On October 23, petitioner refused to follow the procedural rules of the hearing by his continued attempts to speak out of turn, despite numerous admonitions by the hearing officer. When petitioner could not follow the rules, he left the hearing. Although petitioner's attorney objected to proceeding with the hearing in petitioner's absence, she did not ask for an opportunity to speak to petitioner so that he could return to the hearing, nor did she ask for an adjournment to proceed with petitioner at a later date. In fact, she specifically noted that she was not going to speak to petitioner, but that she needed to speak to her office. Following a brief recess, petitioner's counsel requested that she be relieved from the case, citing a Legal Aid policy not to proceed on cases where the client was not present to assist in his defense. She also made it clear that she would withdraw from the case if her application to be relieved was denied. After finding that petitioner voluntarily absented himself, the hearing officer inexplicably granted the attorney's [*3]request, stating, "I'm going to relieve counsel. I don't find that there's any basis to. However I respect that if the Legal Aid Society has their policy and whatever you ladies choose to do is fine." The hearing officer then proceeded with the hearing in petitioner's absence and without counsel. The hearing officer made no effort to appoint new counsel for petitioner. The respondent then called the last witness. Later that day the hearing officer sustained five of the charges against petitioner. In her decision, the hearing officer noted that petitioner absconded for three months and was involuntarily returned to custody due to a new arrest.

As a preliminary matter, the court holds that any claim concerning the timeliness of the final parole revocation hearing must be dismissed as res judicata. Contrary to petitioner's arguments, the law only requires that a final revocation hearing be scheduled to be held, not completed, within ninety days of the probable cause determination. (Executive Law §259-i[3][f][i] [emphasis added]). This issue was specifically raised and decided by the Honorable Martin Marcus in two prior habeas applications,[FN2] the second of which Judge Marcus denied based on res judicata because of his decision on petitioner's first writ. Accordingly, it will not be considered by this court.

The court also notes that a review of the court's records indicates that petitioner has not posted bail in his pending criminal case, which is scheduled for trial in Queens County on September 9, 2008. It is well-settled that the remedy of habeas corpus is unavailable to a parolee who is being held on unrelated charges since he would not be entitled to immediate release even if he could prevail on the merits. (See People ex rel Brown v New York State Div of Parole, 70 NY2d 391, 398 [1987]). Since petitioner in the instant matter remains incarcerated on other charges and would not be entitled to immediate relief even if he were successful on the merits of his claim, the court converts his petition to an Article 78 proceeding pursuant to CPLR §103(c).

The issue before this court is not whether the hearing could have continued after petitioner absented himself. The hearing officer found that petitioner had been explicitly warned on multiple occasions that the hearing would proceed if he was not present.[FN3] The hearing officer also made a finding, both on the record on October 23, 2007 and in her written final revocation decision of that same date, that petitioner voluntarily absented himself from the proceeding, as was his right. Moreover, given petitioner's outburst and his refusal to follow the rules after several admonitions, there is nothing in the record to suggest that petitioner defiantly walking out of the hearing was anything but a knowing and voluntary waiver of his right to be present. (See White v New York State Div of Parole, 60 NY2d 920, 922 [1983]; see also People ex rel Alexander v Le Fevre, 116 AD2d 869, 870-71 [3d Dept 1986]).

The sole issue in this converted Article 78 proceeding is whether petitioner's right to [*4]counsel was violated when the hearing officer relieved his attorney, at the attorney's request, after he voluntarily left the hearing, leaving him without counsel. Article 78 of the CPLR allows a challenge to any determination by a state agency that was arbitrary and capricious, an abuse of discretion, or made in violation of lawful procedure. (CPLR §7803[3]). Moreover, when reviewing a decision to revoke parole, the court's power is limited to determining whether the required procedural rules were followed and whether there is sufficient evidence in the record which, if believed, would support the Division's decision. (See People ex rel Portee v Division of Parole, 199 AD2d 561 [2d Dept 1993]; People ex rel Van Fossen v Dillon, 72 AD2d 166, 168 [4th Dept 1980]). For the following reasons, the court finds that the respondent Division violated petitioner's right to the assistance of counsel, warranting a new parole revocation hearing in this matter.

Petitioner claims that he was denied the right to counsel at the final hearing and that, even though he voluntarily absented himself, there is no evidence that he waived his right to the assistance of counsel. He claims that he was not aware of any Legal Aid policy not to represent clients in absentia, and that he believed that he would still be represented by counsel after he left. As a result, he claims that he was denied the right to cross examine the final witness, present a defense, or present any mitigating factors relating to his restoration to parole, and that he was entitled to the assignment of new counsel before the hearing could continue. The court agrees and holds that counsel should not have been relieved.

The right to counsel at a parole revocation hearing is based on the due process clause of the New York State Constitution and is codified in Executive Law §259-i. (See generally, Morrisey v Brewer, 408 US 471, 498 [1972]; People ex rel Menechino v Warden, 27 NY2d 376, 383 [1971]. Executive Law §259-i[3][f][v]). At a final parole revocation hearing, a parolee has the right to confront and cross examine witnesses against him, present witnesses and evidence in his defense, and present witnesses, evidence, and any mitigating circumstances in relation to whether his reincarceration is appropriate. (Executive Law §259-i[3][f][v], [vi]). Since liberty or imprisonment will be the result, the right to counsel is mandated because the outcome of a revocation hearing depends on the arbiter's findings as to the allegations of misconduct, and counsel is required for the purpose of "marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the [parolee] to present his case." (People v Garcia, 92 NY2d 726, 730 [1999] [quoting People ex rel Menechino v Warden, 27 NY2d at 381-82]; see also People ex rel Donohoe v Montanye, 35 NY2d 221, 226 [1974]).

There was absolutely no basis to relieve counsel in this matter, and the hearing officer should have required the Legal Aid Society to continue to represent petitioner even in his absence. Given that the hearing officer herself acknowledged that there was no basis to relieve counsel, it is inexplicable that she would do so simply because petitioner walked out and his attorney asked to be relieved. The waiver of the right to be present does not also constitute a waiver of the right to the assistance of counsel. Even if there were a legitimate basis to relieve counsel, the hearing officer should have adjourned the case for the appointment of new counsel, and it incomprehensible that she would relieve counsel on the last day of the hearing, after two days of testimony and with only one witness remaining. By improperly relieving counsel and then proceeding to the last witness without appointing new counsel for petitioner, the hearing officer deprived him of his right to counsel. Even if counsel had withdrawn from the case as [*5]she threatened to do if Legal Aid was not relieved, by continuing the hearing without the appointment of new counsel, petitioner was deprived of his statutory and constitutional right to the assistance of counsel.

Petitioner clearly had the assistance of counsel during the first two days of the final revocation hearing. However, the law requires that a parolee who wishes to present a defense or evidence of mitigating circumstances must do so after all of the evidence in support of the violation is presented. (Executive Law §259-i[f][vi] [emphasis added]). Given this statutory mandate, the fact that most of the testimony, including the arresting officer's testimony concerning the February arrest, had been received when petitioner was still represented by counsel, is irrelevant to whether petitioner had the opportunity to, and assistance in, presenting a defense, marshaling the facts, or presenting mitigating circumstances, as is his right. (Garcia, 92 NY2d at 726).

The court also takes issue with any Legal Aid Society policy that requires an attorney to request to be relieved if a client absents himself, or withdraw from the case if that request is not granted. Given that this policy, if indeed it does exist, was not fully articulated on the record, the court cannot determine whether the policy is applicable in all circumstances or whether it was misapplied in this case. Unlike the situation in which a defendant refuses to be present for a first appearance or when Legal Aid is first assigned, a blanket rule, as was applied in this case, not only does a disservice to Legal Aid's clients but raises serious ethical concerns, and the court finds it inexcusable that any attorney would ask to be relieved or threaten to withdraw under the circumstances presented in this case. Although petitioner's refusal to follow procedural rules and his decision to absent himself from the hearing clearly made the representation more difficult, counsel had several choices. She could have requested an adjournment and then proceeded over her objection to preserve the issue for judicial review, whereupon counsel could have cross examined the last witness, presented evidence on petitioner's behalf, and argued for his restoration to parole. Counsel also could have asked for an opportunity to speak to petitioner so that he could return to the hearing, or for an adjournment to proceed with petitioner at a later date.[FN4] Instead, counsel chose to abandon her client, his cause, and her obligation to zealously represent his interests. Under these circumstances, any withdrawal by the Legal Aid Society, as counsel threatened to do if not relieved, would clearly have constituted ineffective assistance of counsel.

For the foregoing reasons, petitioner's application is granted to the extent that a new hearing is ordered. A denial of due process at a parole revocation hearing can result in a new parole hearing or the nullification and dismissal of the revocation process. (People ex rel Fowler v Smith, 110 Misc 2d 767, 772 [Sup Ct Wyo Co 1981] [uncounseled waiver of right to counsel] [*6][citing People ex rel Gaskin v Smith, 55 AD2d 1004, 1006 [4th Dept 1977] [restoration to parole may be appropriate for technical violations but not where the alleged violations are of "a kind that bespeak a serious threat to public safety"]]; see also People ex rel Tyler v New York State Div of Parole, 233 AD2d 931, 932 [4th Dept 1996] [where right to counsel was not knowingly, intelligently and voluntarily waived, it was not error to grant writ and hold parolee for new hearing without discharging him from custody], appeal denied, 89 NY2d 812 [1997]). Since this is not a case where the respondent Division would benefit or gain an unfair advantage by the due process violation should a new hearing be ordered (see People ex rel Fowler v Smith, 110 Misc 2d 767 [where respondent would be able to simply introduce certificate of subsequent conviction to establish parole violation if a new hearing were ordered]), there is no reason to conclude that a new hearing would not adequately protect petitioner's rights, particularly since the charges are unrelated to his pending criminal case. (See e.g. People ex rel Gonzalez v Warden, 160 AD2d 545, 546 [1st Dept 1990] [in challenging waiver of preliminary hearing, the most that parolee could have achieved would have been a new hearing]). Accordingly, a new final revocation hearing is ordered.

Petitioner is to be assigned 18b counsel for his final revocation hearing.[FN5]

This opinion constitutes the decision and order of the court.

Dated:August 4, 2008

Bronx, New York

_______________________________

Margaret L. Clancy, Judge Footnotes

Footnote 1: Petitioner's writ was originally filed by counsel. Due to differences between them, however, counsel withdrew from the matter and petitioner chose to represent himself. Petitioner filed two additional pro se submissions, supplementing the original writ, dated February 28, 2008 and March 20, 2008.

Footnote 2: See People ex rel Wingate v Warden, Sup Ct Bronx Co, Index No. 51727-07 (Sept 19, 2007, Marcus, J.); and People ex rel Wingate v Warden, Sup Ct Bronx Co, Index No. 51727-07 (Oct 22, 2007, Marcus, J.).

Footnote 3: This is no different than the warnings given in a criminal trial. (People v Parker, 57 NY2d 136 [1982]).

Footnote 4: Counsel had previously asked to be relieved on September 12, 2007, due to a claimed conflict following petitioner's formal complaint against another Legal Aid attorney on his criminal case. That request was denied upon a finding that petitioner's complaints constituted delaying tactics. (See People ex rel Wingate v Warden, Sup Ct Bronx Co, Index No. 51727-07, p4 & n1 [Oct 22, 2007, Marcus, J.]). That counsel made no attempt on October 23 to speak with petitioner to get him to return or to proceed at a later date strongly suggests that counsel simply wanted to withdraw from the matter, regardless of any Legal Aid policy.

Footnote 5: To the extent possible, the hearing should be conducted by a different hearing officer as well.