People ex rel. Alli v Warden, Gumusdere
Annotate this CaseDecided on December 3, 2014
Supreme Court, Bronx County
The People of the State of New York ex rel. Umar Alli, [Warrant No. 674427 B & C # 241-14-02402, NYSID # 02990652-Y], PETITIONER,
against
Warden, Gumusdere, NYC Department of Correction and NYS DEPARTMENT OF PAROLE, RESPONDENTS.
340555-14
For Respondent:Eric T. Schneiderman
Attorney General of the State of New York
By: David T. Cheng
Volunteer Assistant Attorney General
120 Broadway, 24th Floor
New York, New York 10271
For Defendant:Mr. Umar Alli, pro se
DIN 12A1086
Great Meadows Correctional Facility
11739 State Route 22
PO Box 51
Comstock, New York 12821-0051
Dominic R. Massaro, J.
Petitioner brings this pro se Petition for a Writ of Habeas Corpus alleging, among other things, that his due process rights were violated because his final parole revocation hearing was held beyond the 90 days required by statute. Respondent maintains that Petitioner's claims are without merit and should be dismissed.
On February 15, 2012, Petitioner was convicted in Bronx Supreme Court of two counts of Attempted Criminal Possession of a Weapon in the Second Degree. He was sentenced to determinate sentences, one sentence of three years and six months, and one sentence of two years, plus a period of four years post-release supervision. On April 5, 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" or "Respondent") 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 violation of his conditions of release to parole supervision, Petitioner was to be supervised until April 5, 2017.
Petitioner was declared delinquent on November 11, 2013, and charged with violating the following four conditions of his release to parole supervision: (1) Rule #8 - "on 11/01/13, at approximately 3:30 AM, at 710 East 187th Street, Bronx, New York, he shoved Philipe Toronto causing pain and discomfort to his left shoulder and hands;" (2) Rule #8 - "on 11/01/13, at approximately 3:30 AM, at 710 East 187th Street, Bronx, New York, he punched Philipe Toronto causing pain and discomfort to his left shoulder and hands;" (3) Rule #8 - "on 11/01/13, at approximately 3:30 AM, at 710 East 187th Street, Bronx, New York, he threatened to cut Philipe Toronto with a box cutter;" (4) Rule #13 - "on 11/01/13, he failed to comply with the verbal instructions given to him on 4/25/13, stating that he has a 9:00 PM to 7:00 AM, seven days a week curfew inside of his approved residence."
As a result, on March 12, 2014, Parole Warrant No. 674427 was issued. Separately, on March 13, 2014, Petitioner was arrested and charged with False Impersonation and Disorderly Conduct. On March 14, 2014, Parole Warrant No. 674427 was lodged against Petitioner. Also, on March 14, 2014, a Supplemental Violation of Release Report was prepared charging Petitioner with violating the following additional fourteen conditions of his release to parole supervision: (5) Rule #8 - "on ... January 25, 2014, at ... 12:00 AM, inside of 3859 Third Avenue, Bronx, New York, 10457, he was in possession of Ms. Leisha Stinnette's keys without permission or authority;" (6) Rule #8 - " on... January 25, 2014, at ... 12:00 AM, inside of 3859 Third Avenue, Bronx, New York, 10457, he was in possession of Ms. Leisha Stinnette's phone without permission or authority;" (7) Rule #8 - "on ... January 25, 2014, at ... 12 AM, inside of 3859 Third Avenue, Bronx, New York, 10457, he did violently grab Ms. Leisha Stinnette with the intent to cause injury;" (8) Rule # 8 - " on ... January 25, 2014, at ... 12 AM, inside of 3859 Third Avenue, Bronx, New York, 10457, he pushed Ms. Leisha Stinnette;" (9) Rule #8 - "on ... January 25, 2014, at 12 AM, inside of 3859 Third Avenue, Bronx, New York, 10457, he entered Ms. Leisha Stinnette's apartment without permission or authority to do so;" (10) Rule #8 - "on ... [*2]February 5, 2014, at approximately 7:00 PM, he was in possession of Ms. Leisha Stinnette's keys without permission to do so;" (11) Rule #8 - "on ... February 5, 2014, at approximately 7:00 PM, he kicked Ms. Leisha Stinnette's cell phone to the floor;" (12) Rule #8 - "on ... February 5, 2014 at ... 7:00 PM, while on the Bronx #15 City Bus, he did grab Ms. Leisha Stinnette by the neck with the intent to cause injury." (13) Rule #8- on ... February 5, 2014, at ... 7:00 PM, while on the Bronx #15 City Bus, he did throw Ms. Leisha Stinnette on top of her children who were seated on the bus;" (14) Rule # 8 - "on March 5, 2014, at ... 4:00 AM, he was inside of 3859 Third Avenue, Bronx, New York, 10457, without permission or authorization to do so." (15) Rule #8 - "on March 5, 2014, at ... 4:00 AM, inside of 3859 Third Avenue, Bronx , New York, 10457, he did kick Leisha Stinnette's apartment door causing damage;" (16) Rule #8 - "he failed to reply truthfully to an inquiry by PO Douthit, on March 5, 2014, when [Petitioner] stated he was still residing 3859 Third Ave, Bronx, New York, 10457;" (17) Rule #4 - "on or before March 5, 2014, he changed his approved residence at 3859 Third Avenue, Bronx, New York, 10457 without the knowledge or permission of his parole officer;" (18) Rule #2 - "he failed to make his office report on 3/12/2014 and thereafter, as he was instructed to do by Parole Officer Douhit during an office report on 3/05/2014."
On March 27, 2014, Petitioner's preliminary hearing was held. At the conclusion of the preliminary hearing on March 31, the Hearing Officer found probable cause on charge number fifteen. The final hearing was scheduled for April 10, 2014.
Following the preliminary hearing, Petitioner brought a pro se Petition for a Writ of Habeas Corpus alleging violations of his due process rights. Among other things, Petitioner claimed that the preliminary hearing was not held within fifteen days of the execution of the parole warrant as required by statute. In a decision dated, August 29, 2014, the Court denied the petition in its entirety.
Petitioner's final hearing was rescheduled to April 11, 2014[FN1] because Petitioner had not been declared delinquent. On April 11, 2014, the final hearing was adjourned to May 8, 2014 because the Petitioner was not produced[FN2] . On May 8, 2014, the hearing was adjourned to June 5, 2014 and charged to Parole. On June 5, 2014, the final hearing was adjourned to June 23 for notice. On June 23 Petitioner's final hearing commenced.[FN3] Respondent was represented by Parole Revocation Specialist (hereinafter "PRS") Shaw. Petitioner was represented by Mr. Armando Lopez, Esq.. The final hearing was continued on July 9, August 4, and September 8, [*3]2014.
Discussion
Petitioner contends that his due process rights were violated because the final hearing was held outside the statutory 90 day period. Specifically Petitioner, argues that the postponement of the hearing from June 23 to July 9 was an adjournment that should be charged to the Respondent since the reason for the extension was poor witness management on the part of Respondent rather than a compelling circumstance. Petitioner also alleges that the Administrative Law Judge (hereinafter "ALJ") denied him his right to proceed pro se and/or for change of counsel and additionally that on July 9 the ALJ improperly denied his request for exculpatory and material evidence.
Respondent counters that the final hearing was held within 90 days of the finding of probable cause at the preliminary hearing and that any continuance of the hearing beyond the 90 days was for good cause. Respondent notes that on June 23, the ALJ found that a prima facie case had been established as to at least one of the charges. The ALJ also determined that the continuance to July 9 was necessary to procure two of Respondent's witnesses whose absences on June 23 were beyond Respondent's control.
Respondent further submits that the ALJ denied Petitioner's July 9 request to proceed pro se[FN4] on the ground that it would be improper to relieve a proficient counsel in the middle of the final hearing. Respondent also maintains that Petitioner's disruptive manner, manifested both at the preliminary hearing and during the final hearing, posed a threat to the fairness and order of the hearing process. Respondent argues that Petitioner's July 9 request to subpoena the phone records was also untimely. The final hearing was already in progress and securing the records would cause inordinate delay and Petitioner had not yet attempted to acquire the records. The ALJ ruled that Petitioner could testify as to the content of the records.
Executive Law §259-i[3][f][i]) provides that a final revocation hearing shall be scheduled to be held within 90 days of the probable cause determination. The parolee and his attorney must be given written notice of the date, time and place of the final revocation hearing at least 14 days prior to the scheduled date of the hearing (Exec Law §259-i[3][f][iii]). Under 9 NYCRR §8005.17(c)(4), a continuance of a hearing already in progress may be granted in the discretion of the presiding officer, having due regard for the interest of all parties, but only upon a showing of good cause which is noted on the hearing record. There is no requirement that the final hearing be concluded within the 90 day period (Exec Law §259-i[3][f][i]; People ex rel Fyall v Warden, Index No. 75143-07 [Sup Ct, Bronx County December 10, 2007 (Sonberg, J.)]).
In this case, it is not contested that the final hearing commenced on June 23, 2014, a date within the 90 day limit. By June 23, Petitioner had also received 14 days notice of the hearing. At the hearing on June 23, the ALJ found that a prima facie case was established as to at least one of the charges. The ALJ granted the continuance to July 9, specifically acknowledging that based on the record made by Respondent every effort was made to procure both PO Nicholas Iannucci and Ms. Leisha Stinnette for the hearing on June 23. As to PO Iannucci, this included both PRS Shaw and her supervisor contacting PO Iannucci's command officer who refused to [*4]permit the witness to work because it was his regular day off and the Police Department would not pay overtime. As to Ms. Stinnette, the continuance was necessitated by PRS Shaw's recent inability to contact Ms. Stinnette. Up until a week prior to the June 23 hearing, PRS Shaw had been in contact with Ms. Stinnette, who was aware of the June 23 hearing date. However, during the intervening week, Ms. Stinette had moved and her phone had been disconnected. The Court agrees with the ALJ's determination that under the circumstances, a short continuance in which to locate such a witness and secure her availability is a valid reason for a continuance.
Petitioner also claims that the ALJ denied him his right to proceed pro se[FN5] . A parolee has a right to proceed pro se at a revocation hearing (see People ex rel Brown v. Parole, 70 NY2d 391 [1987]), however, the right to proceed pro se is not absolute (see People v. McIntyre, 36 NY2d 10 [1974]). In McIntyre, the Court of Appeals stated that a defendant in a criminal case may invoke the right to proceed pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues. On July 9, Petitioner's attorney, who also represented him at the preliminary hearing stated that Petitioner wanted to proceed pro se and that he wanted to withdraw as counsel since he and Petitioner had their differences and that Petitioner did not have confidence in his representation and, " it has been an issue since day one." The ALJ denied the motion stating, "[t]his case has been on since I think the first time we met Mr. Alli was back in (sic) May 8, it's now July 9 in the middle of a hearing. I am not going to relieve you." Once a trial has begun the right to proceed pro se is severely constricted, will be granted in the trial court's discretion and only in compelling circumstances. Furthermore, "[w]hen a defendant's conduct is calculated to undermine, upset or unreasonably delay the progress of the trial he forfeits his right to self representation" (McIntyre at 17-18). Here, not only was the request to proceed pro se untimely but it also posed a threat to the orderliness of the hearing process since Petitioner's had exhibited disruptive behavior at the preliminary hearing[FN6] and frequently blurted out during the final hearing. Thus, both the delay in bringing this matter to ALJ's attention and the Petitioner's behavior warranted a denial of his request to go pro se.
Petitioner's contention that he was denied his right to exculpatory and material evidence, specifically, the content of his Rikers Island phone conversations with the complainant, is also without merit. The ALJ denied his July 9 request because it would take too long to subpoena the documents, the records were not material and the complainant was not on trial. Also, the the ALJ noted that since Petitioner indicated that he was going to testify, he could testify as to the content [*5]of the phone conversations. Again, Petitioner's request for the records at the conclusion of Respondent's evidence was untimely. Moreover, Petitioner, who was a party to the phone conversations in question, had not yet attempted to acquire the records and did not demonstrate a showing of good cause for a continuance to acquire them (see 9 NYCRR §8005.17[c][4]).
Any remaining issues are without merit. 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.
December 3, 2014______________________________Dominic R. Massaro, JSC Footnotes
Footnote 1:The information concerning the rescheduling of Petitioner's final hearing was derived from a computer printout entitled New York State parole partner status inquiry, provided by the Respondent.
Footnote 2:The minutes of April 11, 2014 indicate that Petitioner refused to come to the April 11, 2014 hearing, however the minutes of May 8, 2014 explain that the April 11th date would not have provided Petitioner with the necessary fourteen day notice he was entitled to by statute.
Footnote 3:To the extent that Petitioner argues that the initial date for the final hearing did not provide him with the required fourteen days notice, this was cured since the final hearing commenced on June 23, 2014.
Footnote 4:Respondent argues that Petitioner did not request substitute counsel at the hearing.
Footnote 5:Although Petitioner now alleges that the ALJ denied his right to proceed "pro se and/or change counsel." A review of the hearing transcript does not reveal that Petitioner desired to substitute counsel but rather wanted to proceed pro se.
Footnote 6:At the end of the preliminary hearing, after the hearing officer had Petitioner removed from the hearing for shouting insults at the complaining witness. His counsel, Mr. Lopez stated that Petitioner wanted to make a motion to proceed pro se. The hearing officer stated that she would never give him the opportunity to proceed pro se during the preliminary hearing process because of his continuously blurting out even when instructed not to.
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