People ex rel. Gates v New York State Div. of Parole
Annotate this CaseDecided on September 25, 2012
Supreme Court, Bronx County
The People of the State of New York ex rel. Gregory Gates, Petitioner,
against
New York State Division of Parole, Superintendent, Rikers Island Correctional Center, Respondents.
340048-2012
Percival Clark, Esq.
Counsel for the Petitioner
1059 East 228th Street
Bronx, NY 10466
9140310-2324
James Cooney
Assistant Attorney General
Counsel for the Respondent
120 Broadway, 24th Floor
New York, NY 10271
212-416-6082
Richard L. Price, J.
Petitioner, by writ of habeas corpus submitted June 11, 2012, moved for an order vacating his parole warrant and releasing him from the custody of New York State Department of Corrections and Community Supervision (Respondent) or (DOCCS). Specifically, petitioner asserts (i) that DOCCS failed to provide him with timely notice of the charged parole violations and preliminary hearing; and (ii) that the Division failed to timely afford him a final 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) (c) (iii) and (f) (i).
[*2]Procedural HistoryOn September 14, 1994, judgment was entered against petitioner in Supreme Court, New York County, upon his conviction of Robbery in the Second Degree. Defendant was sentenced to an indeterminate life term of imprisonment with a mandatory minimum period of eight years.
On April 3, 2009, petitioner was released to be supervised by the Division for Life. In connection with his release, petitioner signed 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
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2. I will make office and/or written reports as directed.
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6. I will notify my Parole Officer immediately any time I am in contact with or arrested by any law enforcement agency. I understand that I have a continuing duty to notify my Parole Officer of such contact or arrest.
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8. I will not behave in such a 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 well-being of myself or others.
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11. I will not use or possess any drug paraphernalia or use or possess any controlled substance without proper medical authorization.
***
DOCCS contends that on October 21, 2011, petitioner failed to make his office report as instructed.
DOCCS further contends that on October 26, 2011, petitioner was arrested for unlawfully panhandling in the New York City Transit System in New York County. When New York City Police Department (NYPD) officers attempted to effect petitioner's arrest for disorderly conduct he allegedly became irate, flailed his arms, and struggled with the arresting officers. Petitioner was further charged with resisting arrest and obstructing governmental administration in the second degree.
On November 3, 2011, petitioner was re-arrested by NYPD Officer W. Rohan on November 3, 2011, and charged with selling a quantity of controlled substance in exchange for a quantity of United States currency to an undercover police officer in Kings County. Petitioner was also charged with possession of a controlled substance without proper medical authorization. DOCCS alleges that petitioner failed to satisfy his immediate and continuing duty to notify his parole officer of this arrest.
DOCCS subsequently declared petitioner delinquent (effective as of October 21, 2011) for violating the conditions of his release to parole supervision as outlined above. On November 7, 2011, DOCCS issued Parole Warrant No. 632819 ("Parole Warrant") (see Respondent's Exhibit "G"). The warrant was lodged against petitioner on November 9, 2011.
On November 12, 2011, three days after lodging the parole warrant, Parole Officer Stephanie Simeon (PO Simeon), petitioner's assigned parole officer, states that she attempted to [*3]personally serve petitioner with a copy of the Violation of Release Report (see Respondent's Exhibit "F") as well as the Notice of Violation (see Respondent's Exhibit "H") at Rikers Island. Petitioner refused to accept service, and on November 4, 2011, PO Simeon sent petitioner (via certified mail/return receipt) a copy of the Notice of Violation (see Respondent's Exhibit "H") and a copy of the Violation of Release Report (see Respondent's Exhibit "F"). Petitioner claims to have not received the violation report or notice of violation.
On November 17, 2011, DOCCS conducted petitioner's preliminary hearing. Upon its conclusion, the DOCCS hearing officer found probable cause existed that petitioner violated a condition of his release to parole supervision in an important respect (see Respondent's Exhibit "J"). Petitioner objected to DOCCS holding the preliminary hearing on the basis that he had not been properly and timely served with the required notices. Specifically, petitioner alleged that he was first served with the Notice of Violation and Violation of Release Report immediately prior to the commencement of the preliminary hearing.
On November 30, 2011, DOCCS commenced, but did not conclude, petitioner's final revocation hearing. Petitioner argues that because respondent failed to conclude the final hearing within 90 days of the preliminary hearing officer's finding of probable cause, the parole warrant must be vacated. This court disagrees.
Discussion
A. Notice
Executive Law § 259-i (3) (c) (iii) provides:
The alleged violator shall, within three days of the execution of the warrant, be given written notice of the time, place and purpose of the [preliminary] hearing . . . [which] shall state what conditions of presumptive release, parole, conditional release or post-release supervision are alleged to have been violated, and in what manner . . ." (EL 259-i [3] [c] [iii]).
The purpose of this requirement is to give an alleged parole violator adequate notice of the time, date, and place of the preliminary parole revocation hearing, inform him of the basis for the violation, and enable him to adequately prepare (People ex rel. Williams v Walsh, 241 AD2d 979 [4th Dept 1997], lv denied 90 NY2d 809 [1997]). With this purpose in mind, courts have consistently held that failure to give an alleged parole violator notice of rescheduled preliminary hearings neither violates a parolee's due process rights nor entitles him to be restored to parole (Walsh at 979; People ex rel Walker v Warden, 162 AD2d 107 [1st Dept 1990]; see also People ex rel. McKay v Sheriff, 152 AD2d 786 [3d Dept 1989], lv denied 74 NY2d 616 [1989]).
In this case, PO Simeon timely served petitioner with notice of the scheduled preliminary hearing, as well as the charged parole violations. The parole warrant was executed on November 9, 2011. Three days later, on November 12, 2011, PO Simeon attempted to personally serve petitioner with the Notice of Violation and Violation of Release Report, which notified him that his preliminary hearing had been scheduled for November 17, 2011, and specified the alleged violations of his conditional release. A copy of the Notice of Violation signed by PO Simeon indicates that petitioner indeed refused service. PO Simeon then mailed copies of those documents to petitioner by way of certified mail, return receipt requested.
This court notes that while Executive Law § 259-i (3) (c) (iii) does not explicitly require personal service, it is certainly the better practice when possible. In circumstances such as here, [*4]however, where personal service was attempted but impeded by petitioner's refusal to accept, and such refusal is well-documented, sending notice of the preliminary hearing and alleged violations via certified mail is sufficient. Accordingly, this court finds petitioner was properly and timely served with the Notice of Violation and Violation of Release Report.
B. Final Hearing
Regarding petitioner's claim that DOCCS failed to timely afford him a final revocation hearing, this Court notes at the outset that the final hearing need only be commenced within 90 days of a finding of probable cause, not that it be completed (see People ex rel. Fyall v Warden, Sup Ct, Bronx County, December 10, 2007, Sonberg, J., index No. 75143-07). Here, it was. Respondent alleges, and petitioner does not dispute, that the hearing was timely commenced on November 30, 2011, 13 days after a finding of probable cause at the November 17, 2011, preliminary hearing. Petitioner's meritless claim aside, a simple calculation of the adjournment periods reveals that petitioner's final hearing was indeed concluded within 90 days. In fact, only 81 days are chargeable to DOCCS.
With respect to the following adjournment periods, petitioner alleges, and Respondent does not dispute, that they are properly charged to DOCCS:
November 17, 2011, to November 30, 2011 — 13 days;
November 30, 2011, to December 14, 2011 — 14 days;
On January 4, 2012, to January 12, 2012 — 8 days;
On January 12, 2012, to February 1, 2012 — 20 days;
On February 1, 2012, to February 17, 2012 — 16 days;
On February 17, 2012, to February 27, 2012 — 10 days.
As to the adjournment period from February 17, 2012 to February 27, 2012, this court notes that while DOCCS conceded to 17 days, such concession was based on an erroneous calculation. In fact, this period consists of only 10 days. The total number of days represented by these adjournment periods is 81, all of which are properly charged to DOCCS.
Moreover, Respondent claims, and petitioner does not dispute, that the adjournment period from February 27, 2012, to March 15, 2012 (17 days), and from March 15, 2012, to April 12, 2012 (28 days) should be charged to petitioner.
With regard to disputed 21-day adjournment period between December 14, 2011, and January 4, 2012, petitioner asserts it must be charged to DOCCS because it served no legitimate purpose. He is incorrect. While determining what constitutes a legitimate reason is often factually sensitive, such reasons include witness unavailability (People ex rel Meyers v Warden, Sup Ct, Bronx County, April 24, 2009, Dawson, J., index No. 3400009-08 [adjournment permissible when petitioner's parole officer, who was on vacation, could not testify]), medical incapacitation (People ex rel Burley v Warden, Rikers Is., 70 AD2d 518, 518 [1st Dept 1979], lv denied 48 NY2d 602 [1979] [adjournment permissible where petitioner was incapacitated by reason of illness and did not waive his right to be present]), and religious observance (People ex rel Moore v Warden, Rikers Is., 36 AD3d 494 [1st Dept 2007] [adjournment permissible when the hearing was scheduled for petitioner's religious holiday]). In determining whether a preliminary hearing was rescheduled for a legitimate reason, a court should consider the basis for [*5]adjourning it, and whether the DOCCS acted "energetically and scrupulously" in rescheduling it (see e.g. People ex rel Hampton v Warden, 211 AD2d 566, 567 [1st Dept 1995]).
Here, the hearing record establishes that the impetus for the adjournment was to enable petitioner to be considered for a MICA program (see Respondent's Exhibit "B" at 6:5-8). Surely then, such an adjournment was for petitioner's benefit, and petitioner fails to demonstrate otherwise. Accordingly, this adjournment was properly charged to petitioner.
Conclusion
This court finds that the petitioner received timely and proper notice of the charged parole violations and the preliminary hearing pursuant to New York Executive Law § 259-i (3) (c) (iii). This court also concludes that the scheduling and conducting of the preliminary parole revocation hearing was timely pursuant to New York Executive Law § 259-i (3) (f) (i). Petitioner's writ of habeas corpus must therefore be dismissed.
This constitutes the decision and order of the court.
The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.
Dated: September 25 , 2012
E N T E R
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Richard Lee Price, J.S.C.
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