People ex rel. Kato v George Motchan Detention Ctr.

[*1] People ex rel. Kato v George Motchan Detention Ctr. 2010 NY Slip Op 50727(U) [27 Misc 3d 1213(A)] Decided on April 24, 2010 Supreme Court, Bronx County Newman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 24, 2010
Supreme Court, Bronx County

The People of the State of New York ex rel. Gene Kato (AKA Constant Caldor), Petitioner,

against

Warden, George Motchan Detention Center and New York State Division of Parole, Respondents.



250267/10



Steven Banks, Esq.

Attorney for petitioner

The Legal Aid Society

Parole Revocation Defense Unit

199 Water Street

New York, New York 10038

Attn: Jenny Park, Esq.

Office of the Attorney General

Attorney for Respondents

120 Broadway

New York, New York 10271

Attn.: Assistant Attorney General Michael Arcati

Barbara F. Newman, J.

This is a special proceeding under article 70 of the Civil Practice Law and Rules, whereby petitioner seeks a writ of habeas corpus directing that he be released forthwith from respondents' custody on the grounds that his preliminary parole revocation hearing was not conducted in a timely fashion as required pursuant to section 259-i(3)(c)(iv) of the Executive Law, and that his constitutional (U.S. Const. Amend. VI) and statutory (Exec. L.§259-i[3][c][iii]) rights to confront and cross examine adverse witnesses and his constitutional right to due process (U.S. Const. Amend. XIV[§ 1]) were violated. Respondents oppose the petition and argue that petitioner's claims are without merit.

The Court has reviewed the applicable law and the following documents, all of which were [*2]received in chambers on April 5, 2010, and April 6, 2010: (1) petitioner's Petition For A Writ Of Habeas Corpus dated February 10, 2010 (hereinafter, "Petition"); (2) petitioner's Exhibits A through F; (3) respondents' Affirmation In Opposition To Petition For A Writ Of Habeas Corpus dated March 17, 2010 (hereinafter, "Aff Opp"); (4) respondents' Exhibits A through I; and, (5) petitioner's Affirmation In Reply To Opposition To Writ Of Habeas Corpus dated March 23, 2010 (hereinafter, "Reply Aff").

Upon consideration of the foregoing, and for the reasons that follow, the petition for a writ of habeas corpus is denied.

Factual Background

On July 7, 1998, petitioner was sentenced in Supreme Court, Kings County, to an indeterminate term of imprisonment of three years to six years upon his conviction of attempted criminal sale of a controlled substance in the third degree; petitioner was released to parole supervision on March 2, 2004, and was to remain thereon until August 17, 2005. (See Certificate Of Release To Parole Supervision, a copy of which is annexed to the Aff Opp as Exhibit A). Respondents allege that petitioner absconded from parole supervision and was declared delinquent on or about March 8, 2004. (See Aff Opp at 2). He was charged with two violations of the conditions of his release. (See Violation Of Release Report/Case Summary [hereinafter, "VOR/CS"], a copy of which is annexed to the Aff Opp as Exhibit B). On March 16, 2004, respondent New York State Division of Parole (hereinafter, "DOP") issued parole violation warrant number 373986.

On January 15, 2010, petitioner was arrested in Kings County and charged with criminal possession of a controlled substance in the seventh degree (hereinafter, the "CPCS7 charge"). On January 17, 2010, petitioner was arraigned on the CPCS7 charge before the New York City Criminal Court, Kings County, and bail was set at one dollar. (See Criminal Appearance History, Appearance Dates [hereinafter, "Crim Ct App Dates"], a copy of which is annexed to the Petition as Exhibit C). On January 19, 2010, petitioner was served with copies of both a Notice Of Violation of parole (see Notice Of Violation [hereinafter, "NOV"], a copy of which is annexed to the Aff Opp as Exhibit E), and the VOR/CS. The NOV advised petitioner that a preliminary parole revocation hearing had been scheduled for January 29, 2010.

On January 29, 2010, petitioner was represented by counsel and DOP was represented by Senior Parole Officer William Scott. At the hearing officer's direction, S.P.O. Scott read the first of the two charges against petitioner. (See transcript of minutes of proceeding at Rikers Island Judicial Center on January 29, 2010, a copy of which is annexed to the Aff Opp as Exhibit F [hereinafter, "1/29/10 Tr"], at 3-4). Through his attorney, petitioner entered a plea of not guilty and moved to dismiss the charge as facially insufficient. (See id. at 4). After hearing argument from the parties, the hearing officer determined that if DOP wished to proceed on charge number one, "[t]he Division will have to rewrite the charge and then give notice." (Id. at 8). Then, in response to S.P.O. Scott's announced intention to proceed on the second charge, the hearing officer said, "The hearing officer is recommending that you [DOP] take note of charge number one. Reword it and serve [petitioner] and adjourn the case. Charge number two, while we are not going to consider it at this juncture, looks like it has a problem as well." (Id.) S.P.O. Scott made an application to amend [*3]charge number one; then he read into the record the proposed amended charge. (See id. at 9). Concluding that day's proceeding, the hearing officer said, "The Division has amended charge number one, rule number two and has requested an adjournment chargeable to the Division to February 2, 2010." (Id. at 9-10).

On February 2, 2010, petitioner was not produced for the preliminary parole revocation hearing because he had been transported to Kings County for a court appearance on the CPCS7 charge (see generally transcript of minutes of proceeding at Rikers Island Judicial Center on February 2, 2010, a copy of which is annexed to the Aff Opp as Exhibit G [hereinafter, "2/2/10 Tr"]), on which charge Kings County Criminal Court released petitioner on his own recognizance (see Crim Ct App Dates). The preliminary parole revocation hearing was adjourned to February 3, 2010. (See 2/2/10 Tr at 3).

When the instant matter was called by the hearing officer on February 3, 2010, petitioner's attorney objected to the proceedings and made an application that parole violation warrant number 373986 be "lifted because the Division has failed to prove probable cause as to charges one and two within the fifteen days allowed to them." (Transcript of minutes of proceeding at Rikers Island Judicial Center on February 3, 2010, a copy of which is annexed to the Aff Opp as Exhibit H [hereinafter, "2/3/10 Tr"], at 4). Petitioner's attorney argued that DOP had failed to conduct a preliminary parole revocation hearing in the time required under Exec. L.§259-i(3)(c)(iv), because parole violation warrant number 373986 had been "lodged" on January 17, 2010, which was more than fifteen days before February 3, 2010. (See id. at 4-5). According to petitioner's attorney, that argument was "[b]ased on [New York City Department of] Corrections records of when the Parole warrant was lodged." (Id. at 5). S.P.O. Scott argued: "Our [DOP's] records show that the warrant was lodged on January the 19th. So therefore the outside [fifteenth] day would be today." (Id. at 4).

In response to petitioner's objection, the hearing officer said, "Because of the discrepancy . . . I'm not going to act on that ruling at this time. I'm going to have counsel proceed by way of writ court." (Id. at 5). Then the hearing officer convened the preliminary parole revocation hearing by identifying the documents which had been submitted in support of DOP's allegations, including the "Violation of Release Report that contains two charges . . . [and a] one-page case summary signed by A. Damiron on 3/23/2004 and Senior Parole Officer Scott on 3/23/2004 [the VOR/CS]." (Id.) Petitioner's attorney requested "that the Court[, i.e., the hearing officer,] make a finding as to when the Parole warrant was lodged today so we can have at least a ruling on when the 15 days should have begun." (Id. at 6). The hearing officer responded, "I'm not going to make a ruling on that as I indicated because there is a discrepancy," and continued the hearing. (Id. at 6-7).

S.P.O. Scott, the only witness who appeared at the hearing, testified that on March 2, 2004, the date petitioner was released to parole, Parole Officer Damiron gave petitioner instructions concerning his responsibility to return to "the Bronx Two Office." (Id. at 7). When petitioner's attorney objected on the ground that S.P.O. Scott's testimony about what P.O. Damiron said to petitioner on March 2, 2004, was inadmissible as hearsay, the following exchange took place between the hearing officer and S.P.O. Scott.

The Hearing Officer: Why is Officer Damiron not here today ?

Parole Officer Scott: He's retired. [*4]

The Hearing Officer: When did he retire ?

Parole Officer Scott: I believe last year sometime. I'm not in that

bureau anymore.

The Hearing Officer: And you supervised Officer Damiron ?

Parole Officer Scott: Yes.

The Hearing Officer: And you had conferences about the case ?

Parole Officer [sic]: Yes. Officer Damiron instructed him to return on 3/8/04. Mr. Kato failed to return. On or about March 16th we had a conference

(Id. at 7-8).

Without ruling on the objection, the hearing officer continued to hear S.P.O. Scott's testimony. S.P.O. Scott testified that at the March 16, 2004, conference with P.O. Damiron "we determined that [petitioner] was an absconder and we signed off on the warrant. I have not seen or heard from Mr. Kato until he was arrested January 15, 2010 in King's [sic] County for criminal possession of a controlled substance in the seventh degree." (Id.) On cross examination by petitioner's attorney, S.P.O. Scott testified that he did not observe P.O. Damiron instruct petitioner on March 2, 2004, to report on March 8, 2004, that he had no personal knowledge that petitioner did not report on or after March 8, 2004, and that DOP had no "sign-in sheets" or "chrono reports" which would reflect that petitioner did or did not report on or after March 8, 2004. (See id. at 9-19). S.P.O. Scott also testified as to his regular duties as a senior parole officer and his interaction with the parole officers whom he supervises, when a parolee fails to report as instructed (see id. at 11), including that "every [parole violation] warrant I issue involves a conference with the PO of record" (id. at 15).

In her closing argument petitioner's attorney renewed her objection to the admission of S.P.O. Scott's hearsay testimony on the ground that because DOP had not shown good cause for its failure to produce P.O. Damiron, the admission of S.P.O. Scott's testimony violated petitioner's right to confront adverse witnesses. (See id. at 19-20). Petitioner's attorney also renewed her objection to the preliminary parole revocation hearing itself as untimely on the ground that DOP had not established probable cause that petitioner violated a condition of his parole "within the fifteen days from the warrant lodge date of January 17, 2010." (Id. at 20). The hearing officer made no ruling on either objection. No objection was made to the hearing officer's consideration of the VOR/CS.

Based upon the testimony of S.P.O. Scott and the VOR/CS, the hearing officer found that there was probable cause to believe that petitioner had violated a condition of his release to parole supervision. (Id. at 22). A final parole revocation hearing was originally scheduled for February 15, 2010 (see id. at 22), and last adjourned to March 8, 2010 (see Status Inquiry Summary, a copy of which is annexed to the Aff Opp as Exhibit C), but this Court has not been advised whether it has yet been held or what determination may have been made. Therefore, since Kings County Criminal Court released petitioner on his own recognizance on February 2, 2010, and the parties have not alleged that there are any other charges, warrants, or detainers against him, warrant #373986 is, as [*5]far as this Court knows from the information supplied by the parties, the sole cause or pretense for petitioner's detention.

Discussion

Petitioner's was afforded a timely preliminary parole revocation hearing. Pursuant to Exec. L.§259-i(3)(c)(i), "[w]ithin fifteen days after [a parole violation] warrant . . . has been executed, . . . [DOP] shall afford the alleged . . . parole . . . violator a preliminary revocation hearing." A parole violation warrant is executed against a parolee "by taking such person and having him detained." Exec. L.§259-i(3)(a)(ii); see also People ex rel. Morant v Warden, Rikers Island,35 AD3d 208 (1st Dep't 2006) lv denied 8 NY3d 809 (2007). Execution requires that the warrant be the cause of the parolee's detention. See Moody v Daggett, 429 U.S. 78, 87 (1976) (holding that "execution of the warrant and custody under that warrant [is] the operative event triggering any loss of liberty attendant upon parole revocation[, which event] does not occur until the parolee is taken into custody under the warrant" [emphasis supplied]). And despite that both parties herein use the terms interchangeably, the lodging of a warrant against a parolee who is already detained for another reason is not synonymous with the execution of a warrant. See Moody v Daggett, 429 U.S. at 86 (holding that lodging a parole warrant against a parolee detained on another cause "did no more than express the [parole] Board's intent to defer consideration of parole revocation to a later time"); Heath v United States Parole Commission, 788 F.2d 85, 91 (2nd Cir. 1986)(applying Moody and holding: "The warrant issued against Heath apparently was never executed, but lodged instead as a detainer. Placing a detainer against a parolee who has been arrested on an intervening charge does not constitute execution of the warrant.") cert denied 479 U.S. 953 (1986). Thus, petitioner's argument to the contrary notwithstanding, the parole violation warrant was not executed when it was lodged against petitioner at the place of his confinement on January 17, 2010, because the cause of his confinement was then the CPCS7 charge, not the warrant.

Nor, as petitioner also argues, was the warrant executed when Kings County Criminal Court set bail at one dollar on the CPCS7 charge on January 17, 2010. Petitioner erroneously equates those two circumstances based only upon his inference that bail was set in a nominal amount because he was then being detained on the parole violation warrant.[FN1] However, regardless of the amount of the bail set on the CPCS7 charge or Criminal Court's reasoning in selecting that amount, as long as bail remained in effect petitioner could not be released from respondents' custody unless it was posted; and there is no allegation that bail was ever posted. Thus, the circumstance that bail was set in a nominal amount did not transform lodging of the warrant into execution of the warrant, nor change [*6]the fact that the CPCS7 charge was then the sole cause of petitioner's detention.[FN2] Therefore, the fifteen day period prescribed under Exec. L.§259-i(3)(c)(i) did not commence on January 17, 2010, because the parole violation warrant was not executed on that date.

The fifteen day period commenced on January 19, 2010, when petitioner was served with the NOV. Pursuant to Exec. L.§259-i(3)(c)(iii) "[t]he alleged violator shall, within three days of the execution of the warrant, be given written notice of the time, place and purpose of the hearing" (emphasis supplied). Thus, service and execution are discrete events, and under the statute service alone can not and does not constitute execution. However, where such notice is served while the parolee is detained for a reason other than the parole violation warrant to which the notice refers, the warrant is executed within the meaning of Exec. L.§259-i(3)(a)(ii) despite that it is not then the sole cause for the parolee's detention. See People ex rel. Morant v Warden, Rikers Island, 35 AD3d at 209 (holding that "the parole revocation warrant was executed . . . on the date the warrant was served on petitioner at the correctional facility where he was incarcerated for related criminal charges"). Here, DOP chose to serve petitioner with the written notice required under Exec. L.§259-i(3)(c)(iii) — the NOV — on January 19, 2010, while he was still detained on the CPCS7 charge. DOP had fifteen days thereafter to conduct the hearing and they did so on February 3, 2010, the fifteenth day. Therefore, petitioner was afforded a timely preliminary parole revocation hearing.

The hearing officer's consideration of S.P.O. Scott's testimony as to what petitioner was told by P.O. Damiron on March 2, 2004, and that petitioner failed to report to P.O. Damiron on March 8, 2004, did not violate petitioner's right to due process. Under the Due Process Clause of the Fourteenth Amendment to the United State Constitution, the minimum requirements of due process that must be accorded a parolee at a parole revocation hearing include the right to have a "person who has given adverse information on which parole revocation is to be based . . . made available for questioning in his presence." Morrissey v Brewer, 408 U.S. 471, 487 (1972). In accordance with this constitutional requirement, Exec. L, § 259-i(3)(c)(iii) provides that at a preliminary parole revocation hearing an alleged parole violator "has the right to confront the witnesses against him . . . [and, that] [a]dverse witnesses may be compelled to attend the preliminary hearing . . . unless the hearing officer finds good cause for their non-attendance." Thus, while hearsay is admissible at a parole revocation hearing, where testimony which violates the rule against hearsay is the only evidence offered to establish that there was reasonable cause to believe that the parolee violated a condition of parole, such testimony can not be considered in the hearing officer's determination unless the hearing officer makes a specific finding that there was good cause for DOP's failure to produce the declarant whose out-of-court statement is being offered. See People ex rel. McGee v Walters, 62 NY2d 317, 323 (1984) (holding that where "hearing officer made no specific finding of good cause to dispense with the production of the witness whose [out-of-court] statements comprised the only evidence offered by the State . . . a due process violation must be presumed"); cf. People [*7]ex rel. Wilt v Meloni, 170 AD2d 989, 990 (4th Dep't 1991) (holding that, "except in the rare case, hearsay alone will not suffice" to sustain DOP's burden of proof at a parole revocation hearing) appeal dismissed 77 NY2d 973 (1991).

As petitioner contends, S.P.O. Scott's testimony concerning P.O. Damiron's conversation and interactions with petitioner violated the rule against hearsay, and the hearing officer did not make a specific finding of good cause for P.O. Damiron's non-attendance in accordance with the factors enunciated in McGee (see 62 NY2d at 319-320). However, no good cause finding was necessary for the hearing officer to consider S.P.O. Scott's testimony because that portion of the testimony which did constitute hearsay was not the sole basis for the hearing officer's determination. The determination was also based upon the VOR/CS and S.P.O. Scott's testimony as to events of which he had personal knowledge. (See 2/3/10 Tr at 21-22).

The VOR/CS was properly considered by the hearing officer under the business record exception to the rule against hearsay. In order for a document to be admissible in evidence under the business record exception, the document must qualify under, and the party offering it must satisfy the foundation requirements of, section 4518(a) of the Civil Practice Law and Rules. See People v Kennedy, 68 NY2d 569 (1986).[FN3] A signed report, such as the VOR/CS, in which a parole officer avers the factual circumstances by which a parolee in his supervision violated a condition of his release qualifies as a business record under C.P.L.R.§4518(a). See People ex rel. McGee v Walters, 62 NY2d at 320-321. Testimony from the author of a qualifying report is not essential to establish the requisite foundation for admission; the testimony of a non-author is sufficient if the witness "was well familiar with the circumstances under which the [specific report being offered] was prepared," and identifies it as one of a kind upon which the witness routinely relies "as part of her regular course of business." People v Cratsley, 86 NY2d 81, 89-90 (1995) (in rape prosecution, holding that non-author testimony of mentally retarded complainant's program counselor established requisite foundation for admission of report prepared by psychologist); see also, e.g., People v Jenkins,55 AD3d 850, 851 (2nd Dep't 2008) (testimony of DNA expert who did not participate in testing established requisite foundation for admission of report prepared by another employee of laboratory by which witness was employed); People v Scott, 294 AD2d 661, 663 (3rd Dep't 2002) (holding that testimony of non-author paramedic who worked with author, established requisite foundation for admission of ambulance service's report on emergency treatment provided near crime scene) lv denied 98 NY2d 732 (2002).

Uncontroverted, S.P.O. Scott's testimony established the requisite foundation for the hearing officer's consideration of the VOR/CS as a business record under C.P.L.R.§4518(a). The first and second foundation requisites enunciated in People v Kennedy, supra, were established because the VOR/CS was made in the regular course of DOP's business of supervising parolees, and it was in the regular course of DOP's business that such reports be made. See 68 NY2d at 579-580. The third [*8]foundation requisite — that the record be made on or about the time of the event being recorded (see id.) — was established because the VOR/CS was made only fifteen days after petitioner allegedly first failed to appear as P.O. Damiron had instructed, which was within a reasonable time thereafter in the circumstances. See People ex rel. McGee v Walters, 62 NY2d at 320-321 (holding that parole violation report made five months after parolee first failed to appear was "within a reasonable time thereafter," as required under C.P.L.R.§4518[a]). The testimony of P.O. Damiron, the report's author, was not necessary to establish the foundation requisites because S.P.O. Scott, who did testify, was well familiar with the circumstances under which the VOR/CS was prepared and relied upon it in the regular course of business. See People v Cratsley, supra. Thus, the hearing officer properly considered the VOR/CS under the business record exception to the rule against hearsay.

It was also proper for the hearing officer to consider all of S.P.O. Scott's testimony because much of that testimony did not constitute hearsay and was relevant to establish that there was reasonable cause to believe that petitioner violated a condition of his parole. S.P.O. Scott's testimony that he conferred with P.O. Damiron concerning the content and preparation of the VOR/CS, that he co-signed the VOR/CS, that to do those things was part of his regular duties as P.O. Damiron's immediate supervisor, and that he did not see petitioner at the DOP office to which petitioner had allegedly been told to report was based upon his personal knowledge and observations. Compare with People x rel. McGee v Walters, 62 NY2d at 320 ("The report was introduced [at the revocation hearing] and the foundation for it was laid by relator's then current parole officer, who had no personal knowledge of the matters reported.") Because S.P.O. Scott's non-hearsay testimony and the VOR/CS itself were relevant to the determination of the violation with which petitioner was charged, they were properly considered by the hearing officer. Therefore, since that portion of S.P.O. Scott's testimony which did constitute hearsay was not the sole basis upon which the determination was made, the hearing officer's consideration of that hearsay testimony without making a specific finding of good cause for DOP's failure to produce P.O. Damiron did not violate petitioner's right to due process.

Accordingly, and for the foregoing reasons, the petition for a writ of habeas corpus is denied.

The foregoingconstitutes the decision and order of the Court.

Dated: Bronx, New YorkENTER:

April, 2009

HON. BARBARA F. NEWMAN

Acting Justice of the Supreme Court Footnotes

Footnote 1:Petitioner contends that "Here, petitioner was arraigned on a controlled substance charge on January 17. Undoubtedly, the parties became aware at that time of the pre-existing parole warrant and petitioner was then detained under that warrant on that date, January 17, 2010. Indeed, it was because of the parole detainer that petitioner was remanded with bail of one dollar." (Reply Aff at 3).

Footnote 2:Indeed, it could be argued that the parole violation warrant was not executed until February 2, 2010, the date on which petitioner was released on his own recognizance on the CPCS7 charge by Kings County Criminal Court, because that is the date on which the warrant became the sole cause for petitioner's continued detention. Cf. Matter of Newman v Rodriguez, 156 AD2d 975 (4th Dep't 1989) (holding that where parolee was arrested and detained solely on parole violation warrant on the date it was issued, warrant was thereby executed within meaning of Exec. L.§259-i(3)(a)(ii) even though DOP was not notified of the arrest, and did not lodge the warrant, until three days later).

Footnote 3:"[T]he foundation requirements of CPLR 4518 (a) [are]: first, that the record be made in the regular course of businessessentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business; second, that it be the regular course of such business to make the record (a double requirement of regularity)essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record; and third, that the record be made at or about the time of the event being recordedessentially, that recollection be fairly accurate and the habit or routine of making the entries assured." 68 NY2d at 579-580 (emphasis in original).