People ex rel. Hudson v Warden, Rikers Is. Correctional Ctr.
Annotate this CaseDecided on November 10, 2009
Supreme Court, Bronx County
The People of the State of New York ex rel. Isaac Hudson, Petitioner,
against
Warden, Rikers Island Correctional Center, New York State Division of Parole, Respondent.
340726-09
Percival Clarke, Esq.
Counsel for the Petitioner
Michael Arcati
Assistant Attorney General
Counsel for the Respondent
Richard L. Price, J.
By motion submitted September 16, 2009, petitioner seeks a writ of habeas
corpus on the ground that the New York State Division of Parole ("Division") denied him a
timely final parole revocation hearing in violation of the Due Process Clauses of the Fourteenth
Amendment and the New York State Constitution, and Executive Law § 259-i (3) (f) (i).
Procedural History
On March 24, 1993, petitioner was sentenced in Supreme Court, New York County, upon his conviction by plea of guilty to robbery in the first degree to an indeterminate term of twenty years imprisonment, the mandatory minimum period being ten years.
On March 22, 2007, petitioner was conditionally released to the Division. In connection with
his conditional release, petitioner signed, in the presence of a witness, a document entitled
"Certificate of Release to Parole Supervision" (see Respondent's Exhibit A). By signing this
document, petitioner agreed to comply with the terms and conditions set forth in it, which
included the following:
CONDITIONS OF RELEASE
*** [*2]
8. I will not behave in such manner as to violate the provisions of any law to which I am subject which provide for a penalty of imprisonment, nor will my behavior threaten the safety or well-being of myself or others.
***
On April 20, 2009, the Division issued a Violation of Release Report against the petitioner, charging him with having violated six Conditions of Release on April 15, 2009. Also on this date, the Division issued a parole warrant, # 580212 (see Respondent's Exhibit C), for the petitioner.
On April 21, 2009, the Division served Petitioner with a Notice of Violation and a copy of the Violation of Release Report and scheduled a preliminary parole violation hearing for April 30, 2009 (see Respondent's Exhibit D).
On April 30, 2009, the Division held a preliminary violation hearing after which the preliminary hearing officer found probable cause to believe that petitioner had violated the terms and conditions of his release. The Division then scheduled petitioner's final violation hearing for May 12, 2009.
On May 12, 2009, no substantive discussions regarding the parole violation charges occurred. Indeed, the record of that proceeding indicates that the Division presented no witness testimony, offered no evidence, and made no legal arguments. The record further reflects that petitioner's counsel, affiliated with the Legal Aid Society, sought to be relieved from representing him because of the Legal Aid Society's representation of a client in an unrelated matter against whom the petitioner is a witness. The final violation hearing was then adjourned until May 26, 2009 (see Respondent's Exhibit E). This court notes that while respondent provided no record of the May 26, 2009 proceeding, minutes submitted of the subsequent proceedings lead this court to conclude that the Division presented no witness testimony, offered no evidence, and made no legal arguments on that date either.
Petitioner's final hearing was then scheduled for June 30, 2009. At that time, however, the Division indicated that they were not ready to proceed due to the unavailability of their witness. Although the Division's Administrative Law Judge (ALJ) attempted to reschedule petitioner's final violation hearing for July 14, 2009, petitioner's counsel indicated that due to the anticipated engagement in other matters, he would not be available. The ALJ then selected July 28, 2009, for petitioner's final hearing. The record of that proceeding reflects petitioner's repeated and seemingly vociferous protestations to the extended adjournment. Nevertheless, that same record clearly reflects counsel's express consent to the additional two weeks (see Respondent's Exhibit F).
On July 28, 2009, the New York Department of Correctional Services (DOCS) did not produce petitioner as a result of a concurrently scheduled court appearance on an unrelated matter. Again, when the ALJ attempted to reschedule petitioner's final violation hearing for August 7, 2009, petitioner's counsel indicated that due to the anticipated engagement in other matters, he would not be available. Consequently, the ALJ adjourned petitioner's final hearing until August 13, 2009. Here too, the record clearly reflects counsel's express consent to the additional time (see Respondent's Exhibit G).
On August 13, 2009, DOCS produced petitioner and the Division commenced the final parole violation hearing. Petitioner, however, claimed that the hearing was untimely. [*3]Nevertheless, the Division presented the arresting officer and testimony was taken. The hearing was then adjourned until September 22, 2009, for continued testimony (see Respondent's Exhibit H).
Petitioner now brings a writ of habeas corpus, claiming that he was denied his right to a
timely final parole revocation hearing.
Discussion
Petitioner argues that the Division failed to conduct a final parole violation hearing within ninety days of finding that there was probable cause to believe petitioner violated the terms and conditions of his release thus abrogating his rights under the Due Process Clauses of the United States and New York State Constitutions, and New York Executive Law § 259-i (3) (f) (i). The Division argues that subsequent to their April 30, 2009, finding of probable cause, petitioner's final revocation hearing commenced on May 12, 2009, thus satisfying its obligation to conduct such a hearing within ninety days. Alternatively, the Division argues that the final hearing was nevertheless timely held on August 13, 2009, because the time between July 14, 2009, and August 13, 2009, was properly charged to Petitioner.
Regarding the Division's argument that petitioner's final revocation hearing commenced on May 12, 2009, this court finds it to be entirely without merit. "Commencement" of a final parole revocation hearing requires the Division to offer witness testimony and present evidence relative to the hearing issues, not merely appear and announce their readiness to do so (People ex rel Fyall v NYS Div of Parole, Index No. 75143-07 [Sup Ct, Bronx County, December 10, 2007, Sonberg, J). It is patently obvious from the record of the May 12, 2009 proceeding, the Division presented no witness testimony and offered no evidence pertaining to the merits of the case. Moreover, considering that the record clearly reflects that the Legal Aid Society, petitioner's counsel of record, was unable to represent him due to a conflict of interest, the Division certainly was aware that the hearing could not commence until new counsel had been appointed. As such, this court finds not only finds the Division's argument to be entirely without merit, but quite disingenuous as well. In fact, nothing else occurred. Accordingly, since testimony and evidence relating to petitioner's final revocation hearing was first presented on August 13, 2009, this court find's petitioner's final revocation hearing commenced on August 13, 2009. It is of no moment that the hearing did not conclude on that date and was then adjourned until September 22, 2009.
As for whether the Division conducted petitioner's final parole revocation hearing was timely held, this court finds that it was. Executive Law § 259-i (3) (f) (i) entitles a parolee charged with violating the conditions of his parole to a final hearing on such charges within ninety days of a finding of probable cause that he violated those conditions. However, "if an alleged violator requests and receives any postponement of his revocation hearing, or consents to a postponed revocation proceeding initiated by the board, or if an alleged violator, by his actions otherwise precludes prompt conduct of such proceedings, the time limit may be extended" (see Executive Law § 259-i [3] [f] [I]). The New York Court of Appeals has interpreted "by his actions" as requiring a parolee's intention to obtain an adjournment (see People ex rel Brown v NYS Div of Parole, 70 NY2d 391 [1987]).
Here, the ninety-day period began on April 30, 2009, when the Division served petitioner with a Notice of Violation Report, at which time petitioner waived his right to a preliminary violation hearing as noted above. Absent any excludable time from the ninety-day period, therefore, the Division was to have commenced petitioner's final violation hearing by July 28, [*4]2009. On June 30, 2009, however, the Division indicated that they were not ready to proceed due to the unavailability of their witness. As noted above, when the Division's ALJ attempted to adjourn petitioner's final hearing until July 14, 2009, petitioner's counsel stated that he would not be available thus causing the ALJ to reschedule it for July 28, 2009. While this court is certainly empathetic to petitioner's repeated and seemingly vociferous protestations to the additional two weeks, counsel clearly and expressly consented to it. Consequently, being unable to proceed without counsel, such requests must be attributable to petitioner as having been precipitated "by his actions." Accordingly, the fourteen days between July 14, 2009 and July 28, 2009, must be excluded from the ninety-day period.
Also excludable from the ninety-day period is the period from August 7, 2009 to August 13, 2009, when petitioner's final hearing actually commenced. On July 28, 2009, the New York Department of Correctional Services (DOCS) did not produce petitioner as a result of a concurrently scheduled court appearance on an unrelated matter. Here too, when the ALJ attempted to adjourn petitioner's final hearing, this time until August 7, 2009, petitioner's counsel stated that he would not be available. Accordingly, the six days between August, 7, 2009 and August 13, 2009, must be excluded from the ninety-day period.
Conversely, the adjournments on May 12, 2009, June 30, 2009 and July 28, 2009, cannot be charged to the petitioner because nothing in the record supports the contention that he intended to obtain them. Thus, these adjournments were not precipitated "by his actions" (see Brown, 70 NY2d at 391). On May 12, 2009, petitioner's counsel clearly and expressly communicated that the Legal Aid Society is precluded from representing the petitioner because he is a witness against a client of theirs in an unrelated matter. That being so, petitioner was effectively without counsel. Ordinarily, as indicated above, requests for adjournments are for all intents and purposes, considered to be the actions of petitioner notwithstanding that it is counsel who requests makes the request. While it is true, however, that the Legal Aid attorney requested an adjournment for the appointment of new counsel, here it cannot be said to have been precipitated by petitioner's actions. Rather, the sole purpose for counsel's request was to remedy a conflict of interest presented by Legal Aid's representation of another client, not petitioner's actions. As to the adjournment period between June 30, 2009 and July 14, 2009, the Division must be charged as their witnesses were not available thus rendering them unable to proceed.
Finally, on July 28, 2009, DOCS was unable to produce petitioner as a result of a concurrently scheduled court appearance on an unrelated matter. Consequently, the Division would have this court believe that such circumstances require the petitioner be charged with this period. Nothing in the record, however, indicates that petitioner arranged or orchestrated the conflict in an attempt to obtain an adjournment (see Brown, 70 NY2d 391 [1987]). In Brown, the parolee did not appear at his final hearing due to his mandatory appearance on an unrelated case. The parolee was not charged with the subsequent adjournment there was no indication that he caused his own absence. In fact, at the time his hearing was scheduled, he was not aware that he would be required to appear elsewhere on unrelated matter. As such, Brown requires this court find that petitioner abused the statutory framework to arrange his absence; i.e., that he intentionally scheduled his other appearance for July 28, 2009, before he may be charged with this adjournment period (see Brown at 391). Here, there is simply no evidence that petitioner intentionally had his other matter adjourned to July 28, 2009, and the Division does not claim that he did. Accordingly, the Division, not the petitioner, must be charged with the period between July 28, 2009 and August 7, 2009. [*5]
Accordingly, having found the Division chargeable with 85 days, this court concludes that the Division held petitioner's final parole violation hearing within the statutorily required ninety-day period. Petitioner's writ of habeas corpus must therefore be dismissed.
This constitutes the decision and order of the court.
Dated:November 10, 2009
ENTER
________________________________
Richard Lee Price, J.S.C.
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