People ex rel. Otero v New York State Dept. of Corr. & Community Supervision
Annotate this CaseDecided on August 26, 2013
Supreme Court, Bronx County
The People of the State of New York ex rel. German Otero, WARRANT No.631030 B & C #300-12-00250, NYSID #8712871Q, Petitioner,
against
New York State Department of Corrections and Community Supervision, and WARDEN, Rikers Island Correctional Facility, Respondents,
340448-2013
Percival Clarke, Esq.
Counsel for the petitioner
James Cooney
Assistant Attorney General
Counsel for the Respondent
Richard Lee Price, J.
Petitioner moves by Article 78 for an order vacating his parole warrant and releasing him from the custody of Department of Corrections and Community Supervision (DOCCS). By petition submitted July 24, 2013, petitioner asserted that he is being illegally detained because Respondent DOCCS deprived him of his constitutional and statutory right to appeal the determination made at his final parole revocation hearing by failing to generate a verbatim record of that proceeding in violation of his due process rights under Executive Law § 259-i (6). Upon review of the parties' respective papers submitted in connection with this matter, the petition is granted to the extent indicated herein.
Background and Procedural History
On May 19, 2004, judgment was entered against petitioner in Supreme Court, New York County, upon his conviction of assault in the second degree. Petitioner was sentenced to a [*2]determinate term of seven years imprisonment with a period of five years post-release supervision.
On October 10, 2010, petitioner was conditionally released and scheduled to be supervised by DOCCS through September 15, 2015. In connection with his 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
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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 the well-being of myself or others.
***
DOCCS contends that on March 12, 2012, petitioner punched, bit and head-butted several officers inside the Human Resources Administration Center located at 260 East 161st Street, Bronx County, in violation of Rule 8. Based on these circumstances, DOCCS declared petitioner delinquent on March 12, 2012. Petitioner was arrested and charged with felony assault on a law enforcement officer. DOCCS subsequently issued a Violation of Release Report dated March 29, 2012, charging petitioner with violating the above-stated condition of parole (see Respondent's Exhibit B).
On March 27, 2012, DOCCS issued Parole Warrant No. 631030 (the warrant), executed, and lodged against petitioner (see Respondent's Exhibit G). On March 30, 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 H). Petitioner then invoked his right to a preliminary parole revocation hearing.
On April 12, 2012, a preliminary parole revocation hearing was held at the Rikers Island Judicial Center. The hearing officer found probable cause that petitioner violated the above-stated parole condition in an important respect (see Respondent's Exhibit G).
On April 19, 2012, DOCCS commenced petitioner's final parole revocation hearing. The hearing was continued on May 10, 2012, June 14, 2012, and concluded on July 5, 2012. While the Attorney General's Office provided this court with a record of June 14, 2012, proceeding, they concede that no recorded or transcribed record of the remaining proceedings was made, ostensibly attributed to a technical malfunction of the recording device. By decision dated July 20, 2012, DOCCS sustained the charged parole violation, and recommended a time assessment of 24 months. The Board of Parole affirmed DOCCS's recommendation (see Respondent's Exhibit I).
By verified amended petition dated June 14, 2013, petitioner filed for a writ of habeas corpus in connection with the warrant claiming that DOCCS' failure to generate a verbatim record of the final revocation hearing as required by Executive Law § 259-i (6) deprived him of his constitutional and statutory right to appeal the hearing officer's determination and imposition of the 24-month time assessment.
[*3]Discussion
A. Exhaustion
Ordinarily, a petitioner seeking to challenge a determination or ruling of an administrative agency must first exhaust all administrative remedies (People ex rel. Charleston v N.Y.S. Div. of Parole, 280 AD2d 348 [1st Dept 2001]; see also People ex rel. Epps v Warden, Riker's Is. Corr. Facility, 46 AD2d 352 [1st Dept 2007], lv denied 10 NY3d 707 [2008]). Indeed, this is precisely the Attorney General's position. Petitioner notes, however, that where the presented claim is of a constitutional nature, or pursuing it would either be futile or cause irreparable injury, exhaustion is not required (Watergate 11 Apts. v Buffalo Sewer Auth., 46 NY2d 52 [1978]); Milburn v McNiff, 81 AD2d 587 [2d Dept 1981], after remand 91 AD2d 1024 [2d Dept 1983]).
To be sure, it is of no moment whether the presented claim is of a constitutional nature. As petitioner correctly argues, requiring him to first perfect an administrative appeal would indeed be futile considering that a complete record of the final revocation hearing is unavailable. As such, this court will properly entertain the merits of his petition: whether or not DOCCS' failure to generate a verbatim record of that hearing requires dismissal of the warrant or merely a de novo hearing.
B. Remedy
As noted above, the Attorney General does not dispute the absence of a verbatim record of petitioner's final revocation hearing as required by Executive Law § 259-i (6). They do, however, oppose dismissal of the warrant as the proper remedy. Rather, the Attorney General argues, and this court agrees, that the proper remedy is to order a de novo final hearing.
Regarding the appropriate remedy to cure substantive violations of a parole violator's rights at a final revocation hearing, New York courts have consistently held that the proper remedy is a de novo hearing (People ex rel. McDaniel v Travis, 288 AD2d 940 [4th Dept] [improper ex parte communication between ALJ and a witness]; People ex rel. Tyler v N.Y.S. Div. of Parole, 233 AD2d 931 [4th Dept 1996] [denial of right to counsel at final hearing]; People ex rel. Perez v Warden, 139 AD2d 477 [1st Dept 1988] [denial of right to counsel at final hearing]).
Conclusion
For the reasons stated above, this court finds that while DOCCS indeed violated Executive Law 259-i (6), the proper remedy is a de novo final revocation hearing. Petitioner's Article 78 petition is therefore sustained to that extent, and dismissed in all other respects.
This constitutes the decision and order of the court.
Dated: August 26, 2013E N T E R
______________________________
Richard Lee Price, J.S.C.
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