People ex rel. Ortiz v Warden, Eric M. Taylor Ctr.
Annotate this CaseDecided on March 3, 2014
Supreme Court, Bronx County
The People of the State of New York ex rel. Carlos Ortiz, Petitioner,
against
Warden, Eric M. Taylor Center, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS.
251570-13
APPEARANCES: For Respondent, Warden, New York State Department of Corrections and Community Supervision
Eric T. Schneiderman
Attorney General of the State of New York
By: Anna M. Hehenberger
Assistant Attorney General
For Petitioner, Carlos Ortiz
The Legal Aid Society
Elon Hapaz, of counsel
199 Water Street - 5th Floor
New York, New York 10038
Dominic R. Massaro, J.
Petitioner seeks a writ of habeas corpus on the ground that Respondent failed to exercise due diligence in issuing a parole warrant. Respondent maintains that Petitioner's claim is without merit and should be dismissed.
On July 29, 2009, Petitioner was convicted of Attempted Burglary in the Second Degree (PL § 110/140.25) in New York County, for which he received a determinate sentence of three years and six months incarceration, with an additional period of five years post release [*2]supervision.
On January 4, 2013, Petitioner was released to parole supervision and agreed to adhere to certain conditions that the New York State Department of Corrections and Community Supervision (hereinafter DOCCS) imposed upon his release. Prior to Petitioner's release, DOCCS informed him that his failure to abide by these conditions would result in the revocation of his parole. Barring any violations of his conditions of release to parole supervision, Petitioner was to be supervised until January 4, 2018.
Six weeks following his release, on February 26, 2013, Petitioner was again arrested and charged with Criminal Possession of a Weapon in the Third Degree (PL §265.02), Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03), Criminal Possession of a Weapon in the Fourth Degree (PL §265.01), Burglary in the Second Degree (PL §140.25), Grand Larceny in the Fourth Degree (PL§155.30) and Petit Larceny (PL §155.25). On May 1, 2013, Petitioner pled guilty to Criminal Possession of a Weapon in the Fourth Degree
(PL §265.01) under docket # 2013NY016978 and was sentenced to time served. Also, on May 1, 2013, Petitioner pled guilty to Petit Larceny (PL §155.25) under Docket No.2013NY016977 and was sentenced to one year in jail. Including Good Time, Petitioner's sentence would be finished on October 26, 2013.
On September 17, 2013, Parole Warrant No. 640711 was issued and on September 18, 2013 it was lodged against Petitioner. On September 18, 2013, Petitioner was served with a copy of the Violation of Release Report and the Notice of Violation. Petitioner was not entitled to a Preliminary Parole Revocation Hearing due to his new conviction (see Exec Law §§259-i[3][c][I] and [iv]) and, therefore, a Final Parole Revocation Hearing was scheduled.
Petitioner argues that whether DOCCS has acted promptly in the execution of the parole warrant is governed by three factors:the length of the delay, the reason for the delay, and whether the parolee himself contributed to the delay (see People ex rel Flores v. Dalsheim, 66 AD2d 381 (2d Dept 1979); People ex rel Richman v. Pagan, 2003 NY Slip Op 51258 [Sup Ct, Bx Co 2003]). Petitioner maintains that herein the length of the delay is extreme because DOCCS knew of his whereabouts the entire time since he was never released from custody, but nevertheless it waited almost seven months from his arrest on February 26, 2013 and over four months from his plea of guilty on May 1, 2013, to issue the parole warrant.
Petitioner claims he has been unreasonably prejudiced and injured by this delay. He states that he is a Category 1 parolee with serious medical issues, facing a minimum of 12 months in prison for a sustained parole violation and that had DOCCS issued the parole warrant and served him with the violation papers in a timely fashion, he could have begun his parole violation time assessment earlier because a time assessment in parole court begins when a warrant is lodged against the parolee.
Respondent argues that there is no statutory or regulatory period within which a parole warrant must be lodged and executed after the Division of Parole learns of a new arrest and that absent gross disinterest the issuance and execution of a parole warrant is a matter within the discretion of the Division and is not subject to review (see People ex rel Cross v. New York State Div of Parole, 261 AD2d 108 (1st Dept 1999); People ex rel Merritt v. New York State Div of Parole, 257 AD2d 435 (1st Dept 1999); People ex rel Thomas v. Warden, Index No. 252090-08 [Sup Ct, Bronx County, Jan 29, 2009] [Carter, J.]). [*3]
Respondent submits that although Petitioner was arrested in February of 2013, pled guilty in May of 2013 and the warrant was lodged in September of 2013, the time that elapsed does not in any way amount to gross disinterest on the part of Respondent, and Petitioner was still in local custody when the warrant was issued. Respondent further points out that in situations where a parole violation is directly linked to a separate criminal arrest, the Division of Parole does not typically issue and execute a warrant until after conducting an investigation of the new criminal charges and/or the parolee's criminal case has been resolved.
There is no statute or regulation that requires the Division of Parole to execute a warrant within a specific amount of time (see People ex rel Williams v. New York State Div of Parole, Index No 75008-05 [Bronx County, Sup Ct, April 12, 2005] [Clancy, J]; People ex rel Mammina v. New York State Div of Parole, Index No 51939/02 [Bronx County, Sup Ct, April 29, 2003] [Moore, J.]). Unless Petitioner establishes that the Division showed a gross disinterest in the issuance of a parole warrant, it is a matter within the discretion of the Division. Although, "the parolee should be granted the benefit of a prompt disposition of charges against him in the interest of fundamental fairness .... Whether the disposition was prompt must perforce be governed by many factors the length of the delay, the reason for the delay and whether the parolee himself contributed to the delay." (see Dalsheim, supra at 388).
Here, Petitioner has failed to demonstrate that Respondent acted with gross disinterest because it did not issue and execute the warrant immediately upon the Petitioner's arrest or guilty plea. Although there is no indication that Petitioner contributed to the delay and Respondent's explanation for the delay lacks specificity, the four and a half months from Petitioner's guilty plea to the date the warrant was executed was not so unreasonable as to constitute denial of due process (see People ex rel Jackson v. New York State Div of Parole, 211 AD2d 585 [1st Dept 1995]; People ex rel Thomas, supra [2 ½ months]; People ex rel Jackson v. New York State Div of Parole, Index No 252118-08, [Bronx County, Sup Ct, January 22, 2009] [Bruce, J.]
[2 ½ months]; People ex rel Burt v. New York State Div of Parole, 18 Misc 3d 869 [Bronx County, Sup Ct 2008] [Price, J.] [9 months]). Petitioner was still in local custody when the warrant was issued. The Division of Parole met its due process obligations when it lodged the warrant prior to the expiration of the Petitioner's underlying sentence of one year (see People ex rel Merritt v. New York State Div of Parole, 257 AD2d 435 [1st Dept 1999]).
Based on the foregoing, the Court finds that Petitioner's due process rights were not violated. Accordingly, Petitioner's prayer for a writ of habeas corpus is denied in its entirety.
This constitutes the decision and order of the Court.
March 3, 2014______________________________Dominic R. Massaro, JSC
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