People ex rel. Leacock v New York State Dept. of Corr.and Community Supervision

[*1] People ex rel. Leacock v New York State Dept. of Corr.and Community Supervision 2013 NY Slip Op 50109(U) Decided on January 25, 2013 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2013
Supreme Court, Bronx County

The People of the State of New York ex rel. Inger Leacock, Petitioner,

against

New York State Department of Corrections and Community Supervision, and WARDEN, Rikers Island Correctional Facility, Respondents.



250867-2012



Appearances of Counsel:

Kerry Elgarten, Esq.

Legal Aid Society

For the Petitioner

Anna Hehenberger

Assistant Attorney General

Counsel for the Respondent

Richard Lee Price, J.

Petitioner moved by writ of habeas corpus for an order vacating her parole warrant and releasing her from the custody of Department of Corrections and Community Supervision (DOCCS). By petition submitted July 11, 2012, petitioner asserted that she is being illegally detained because Respondent DOCCS deprived her of his right to a timely preliminary hearing by adjourning the matter without a legitimate basis resulting in their re-litigating the parole revocation issues before a different hearing officer in violation of her due process rights under Executive Laws §§ 259-i (3) (c) (i) and (iv). By decision dated September 10, 2012, this court denied petitioner's writ. This expands that decision.

Background and Procedural History

On December 11, 2006, judgment was entered against Petitioner in Supreme Court, New York County, upon her conviction of Criminal Sale of a Controlled Substance in the Third Degree. Petitioner was sentenced to a determinate term of three and one-half years imprisonment. [*2]

On March 27, 2008, petitioner was conditionally released and scheduled to be supervised by DOCCS through March 27, 2010. In connection with her conditional 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

***

2. I will make office and/or written reports as directed.

3. I will not leave the State of New York or any other State to which I am released or transferred, or any area defined in writing by my Parole Officer without permission.

4. I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property. I will discuss any proposed changes in my residence, employment or program status with my Parole Officer. I understand that I have an immediate and continuing duty to notify my Parole Officer of any changes in my residence, employment or program status when circumstances beyond my control make prior discussion impossible.

***

13. I will participate in a substance abuse treatment program as directed by the PO.

***

DOCCS contends that on August 23, 2011, petitioner failed to successfully cooperate with and complete the Palladia residential drug rehabilitation treatment program, changed her approved residence at Palladia by leaving without the permission or knowledge of her parole officer, and on September 20, 2011, petitioner again failed to make her office report as instructed (see Respondent's Exhibit B).

More specifically, on August 2, 2011, Parole Officer Dario Escano (PO Escano) began supervising petitioner at her approved residence at Palladia. On August 3, 2011, PO Escano visited petitioner at Palladia. On August 9, 2011, petitioner called PO Escano and indicated that she would be unable to report that day as instructed because of a previously scheduled HRA appointment. PO Escano instructed petitioner to keep the HRA appointment, and report to parole on August 23, 2011.

On August 23, 2011, petitioner neither reported to parole as instructed nor contacted PO Escano. On August 24, 2011, PO Escano visited Palladia and was informed that petitioner had left the residential program.

On August 25, 2011, petitioner called PO Escano and informed him that on August 24, 2011, she left Palladia to enter Kingsboro Treatement Center, a 28-day residential detox rehabilitation program. PO Escano instructed petitioner to remain there, complete the detox program, and report to parole on September 27, 2011. He further instructed petitioner that if, for any reason, she either left or was discharged before completing it, she was to report to parole within 24 hours.

The next day, on August 26, 2011, petitioner called parole and spoke with Supervising Parole Officer Jones (SPO Jones). Petitioner expressed her unhappiness with the Kingsboro program, at which time SPO Jones directed her to remain there as instructed by PO Escano. The same day, Ms. Galloway, a counselor associated with Kingsboro, contacted PO Escano and [*3]advised him that the petitioner had left the program. Petitioner however, neither notified PO Escano that she left, nor reported to him as instructed.

On August 29, 2011, and September 6, 2011, petitioner failed to appear for her regularly scheduled report days. On September 12, 2011, petitioner called PO Escano and stated that Kingsboro did not work for her. PO Escano directed her to immediately report to parole; petitioner failed to do so. In fact, PO Escano received no further communication from petitioner (see Respondent's Exhibit E).

On September 20, 2011, petitioner called parole Area Supervisor Harvey and requested placement in another drug treatment program but failed to report for screening.

Based on these circumstances, DOCCS issued Parole Warrant No. 633181 (the warrant) against petitioner on September 20, 2011. In conjunction with that report, DOCCS also issued a Violation of Release Report on September 22, 2011, charging petitioner with violating the above-stated conditions of parole (see Respondent's Exhibit B).

On April 8, 2012, petitioner was arrested and charged with drug possession. On April 9, 2012, the warrant was executed and lodged against petitioner (see Respondents' Exhibit C). The next day, on April 10, 2012, DOCCS served petitioner with a copy of the Violation of Release Report (see Respondent's Exhibit B) and Notice of Violation (see Respondent's Exhibit D). Petitioner elected to have a preliminary parole revocation hearing, which, although conducted on April 20, 2011, was initially scheduled for April 16, 2012.

On April 20, 2012, a preliminary parole revocation hearing was held at the Rikers Island Judicial Center. At the hearing, Hearing Officer Chandra Perry-Patterson (Perry-Patterson) heard testimony from PO Escano. Subsequently, Perry-Patterson concluded that DOCCS was unable to establish that petitioner failed to report as instructed on August 23, 2011, without providing testimony from a Palladia counselor that petitioner has left the residential program. As such, Perry-Paterson rescheduled the preliminary hearing for April 24, 2012. She noted that due to her unavailability another hearing officer would be assigned, and the hearing would be held de novo (see Respondent's Exhibit E).

On April 24, 2012, petitioner's de novo preliminary revocation hearing was held by Hearing Officer Audrey Crawford (Crawford). No counselor from the Palladia testified. Nevertheless, Hearing Officer Crawford found probable cause that petitioner failed to report as instructed on August 23, 2011, thus deeming her an absconder in violation of Rule 2 of the conditions of her release to parole supervision. The basis for Crawford's finding was PO Escano's August 24, 2011, visit to Palladia, during which he was unable to locate her, along with a written statement from Palladia personnel affirming that petitioner had left the program against clinical advice.

Conceding that both the initial preliminary hearing on April 20, 2012, and the de novo hearing on April 24, 2012, were held within fifteen days of the warrant's execution, and thus timely, petitioner nevertheless sought habeas relief on due process grounds. Petitioner argues that Crawford was bound by Perry-Paterson's determination that testimony from a Palladia counselor, or good cause for his or her absence, was required to establish the charged violation. Additionally, petitioner claims, that proceeding with the de novo hearing without presenting a Palladia counselor constituted improper "judge" shopping by DOCCS. For the reasons indicated below, this court rejected both claims.

[*4]Discussion

A. Timely De Novo Hearing

Executive Law § 259-i (3) (c) (i) mandates that suspected parole violators be "afford[ed]" a preliminary parole revocation hearing within fifteen days from the time the warrant for retaking is executed; similarly, § 259-i (3) (c) (iv) requires that "[t]he preliminary hearing be scheduled to take place no later than fifteen days from the date of the execution of the warrant." Reading EL 259-i (3) (c) (i) and (iv) in tandem, they both require that a materially relevant hearing be commenced within the fifteen-day period. Such a reading not only furthers their shared purpose, which is to ensure that violators are not held for an undue period of time, but avoids contradiction and redundancy.

This fifteen-day period, however, is not absolute. It is well established that the preliminary hearing need only be meaningfully commenced, not completed, within fifteen days. The Official Compilation of Codes, Rules and Regulations of the State of New York, title 9, § 8005.4 (b) (3) specifically provides that it is within the preliminary hearing officer's authority to "conduct preliminary hearings and provide for the adjournments thereof." Addressing the fifteen-day rule and adjournments of preliminary parole revocation hearings, the seminal case of Matter of Emmick v Enders, (107 AD2d 1066 [4th Dept 1985]), established that adjournments are justified only when "timely scheduled, or held in whole or in part, and thereafter is adjourned for legitimate reasons, without prejudice to the petitioner" (Emmick at 1067). Thus, there is no due process violation where a preliminary revocation hearing is commenced within the fifteen-day period and adjourned outside the statutorily prescribed period, assuming such adjournment is for a legitimate purpose.

De novo hearings conducted outside the statutory period, however, are an entirely different matter. In People ex rel Blasco v New York State Div. of Parole, (33 Misc 3d 650 [Sup Ct Bronx Co 2011]), this court held that EL 259-i (3) (c) (i) and (iv) were violated where a preliminary parole revocation hearing was timely conducted, adjourned, and held de novo on a date outside of the fifteen-day statutory period because the latter hearing was the sole materially-relevant proceeding for purposes of subsections (i) and (iv). The reason is simple: the initial hearing would then function as a mere procedural placeholder.

Here, petitioner concedes that the preliminary hearing was commenced and completed within fifteen days of April 9, 2012, the warrant's execution. The hearing commenced on April 20, 2012, which was eleven days after execution. The hearing was then adjourned until April 24, 2012, fifteen days after execution, for a de novo proceeding. Since both hearings were held within fifteen days of the warrant's execution, EL 259-i (3) (c) (i) and (iv) were not abrogated.

Citing Blasco, petitioner further argues that the hearing officer was prohibited from adjourning a preliminary revocation hearing for a de novo proceeding because, as petitioner characterizes it, DOCCS was "judge" shopping for "a second chance to try their case." This court disagrees. First, DOCCS has no control over the hearing officer assigned to conduct a preliminary hearing on any particular date. It is therefore impossible for the DOCCS to be engaging in "blatant judge'-shopping." More significantly, DOCCS neither sought nor requested the adjournment. Rather, DOCCS accepted it solely as a result of the first hearing officer's directive to present testimony from a Palladia counselor.

Furthermore, adjournments for the purpose of complying with a hearing officer's directive [*5]to secure additional evidence are considered legitimate (People ex rel Young v. Warden of Penitentiary of City of New York, Rikers Island, (17 Misc 3d 1105[A], 2007 NY Slip Op 51831(U) [Sup Ct Bronx Co 2007]). In Young, the preliminary hearing officer directed DOCCS to produce an employee from the parolee's inpatient drug rehabilitation program. According to the hearing officer, such testimony was necessary to determine whether the parolee left against clinical advice, or had been transferred to another program. At the second hearing, which was held de novo, the witness did not appear. Despite such non-appearance, the second hearing officer found probable cause that the parolee had failed to report as mandated, and had left the program on his own volition. The hearing officer based this determination on other evidence, including the results from a toxicology report evidencing that the parolee continued to use drugs, as well as the parole officer's testimony. It is evident, therefore, that petitioner's reliance on Blasco is entirely misplaced and her arguments wholly unpersuasive.

B. Probable Cause Finding Supported by Hearing Record

A court's authority to review the findings of a hearing officer or administrative law judge is limited to determining whether or not the record contains evidence sufficient to support a finding of probable cause (EL 259-i [3] [c] [viii]). Unlike a criminal trial, a preliminary revocation hearing is intended to be informal and summary in nature (see People ex rel Korn v New York State Div. Of Parole, 274 AD2d 439 [2nd Dept 2000]). In fact, parolees are not entitled to the same due process as criminal defendants (People ex rel Calloway v Skinner (33 NY2d 23, 31 [1973]). As such, only a minimal inquiry is required to determine whether or not probable cause exists to believe that a parolee committed the acts constituting the alleged parole violations (see Calloway at 30-31; People ex rel Watson by Jaroff v Commissioner, New York City Department of Correction, 149 AD2d 120 [1st Dept 1989]; People ex rel Wallace v State, 67 AD2d 1093 [4th Dept 1979]). And, significantly, common law standards of proof do not apply; hearsay evidence — including letters, affidavits and other material — is admissible (Morrissey v Brewer, 408 US 471, 489 [1972]).

The preliminary hearing record clearly establishes that Petitioner was required to meet with her parole officer August 23, 2011, as instructed PO Escano. She did not. Instead, on August 25, 2011, petitioner telephoned PO Escano, stated that she had left Palladia, and informed him that she entered Kingsboro Treatment Center on August 24, 2011, a 28-day residential detox rehabilitation program. In good faith, PO Escano permitted petitioner to remain there, instructed her to complete the program, and deferred her next report date to September 27, 2011. Days later, on August 26, 2011, a representative of Kingsboro notified PO Escano that petitioner had left the treatment program, a fact petitioner conceded during her telephone conversation with PO Escano on September 12, 2011. Also during that conversation, PO Escano directed petitioner to immediately report to parole, which she failed to do. In fact, she had no further contact with parole until her April 8, 2012, arrest. Petitioner, for her part, blamed her failure to report on her addiction, and that PO Escano was "not working with her."

Accordingly, this court finds the evidence presented more than sufficiently demonstrates that petitioner possessed knowledge of her requirement to report, and failed to do so for nine months (Calloway at 30-31). Hearing Officer Crawford's finding of probable cause, then, is amply supported by the record.

C. Sixth Amendment Confrontation Clause

Petitioner also contends that DOCCS's failure to produce a counselor from Palladia violated her Sixth Amendment rights under the Confrontation Clause. In support, petitioner relies on People ex rel McGee v Walters (62 NY2d 317, 321 [1994]). Such reliance is entirely misplaced. McGee concerned the admission of a parole violation report as a business record to exclusively substantiate revoking his parole. The author of that report, McGee's first parole officer, however, did not testify; McGee's new parole officer, who possessed no personal knowledge of the report's contents, did. The Court of Appeals held that doing so constituted a due process violation because such admission insulated the author from cross-examination. This was especially true considering that DOCCS failed to exercise any good faith effort to procure the first parole officer, who had left DOCCS employ (McGee at 320, 323).

As indicated, PO Escano possessed personal, first-hand, knowledge of petitioner's failure to report to parole August 23, 2011, as well as her absconding from Palladia. The basis of such knowledge was her visit to Palladia on August 24, 2011, petitioner's telephone call admitting to having left, and subsequent failures to report. Accordingly, petitioner's claim of a Confrontation Clause violation is wholly unpersuasive.

Conclusion

Based on the reasons stated above, this court finds DOCCS timely and properly conducted petitioner's preliminary parole revocation hearing as required by EL 259-i (3) (c) (i) and (iv). Petitioner's writ of habeas corpus must therefore be dismissed.

This constitutes the decision and order of the court.

Dated: January 25, 2012

E N T E R

______________________________

Richard Lee Price, J.S.C.