People ex rel. Sullivan v Baxter

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[*1] People ex rel. Sullivan v Baxter 2018 NY Slip Op 51971(U) Decided on December 24, 2018 Supreme Court, Monroe County DeMarco, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 24, 2018
Supreme Court, Monroe County

The People of the State of New York ex rel. Rasheen Sullivan, Relator,




For the Relator:


Monroe County Public Defender


Assistant Public Defender

10 North Fitzhugh Street

Rochester, New York 14614

For the Respondents:


Monroe County Sheriff's Office

130 South Plymouth Avenue

Rochester, New York 14614


Attorney General for the State of New York


Assistant Attorney General of Counsel

144 Exchange Boulevard, Suite 200 Rochester, New York 14614
John L. DeMarco, J.

Relator initiated the instant proceeding by petition for writ of habeas corpus seeking Court inquiry into the cause of his detention. In sum, he alleges that the evidence adduced at the preliminary parole revocation hearing failed to establish probable cause that he violated the conditions of his release. To be certain, relator contends that the alleged violative behavior is insufficient as a matter of law to sustain the charge upon which probable cause was found. Accordingly, relator seeks cancellation of the parole warrant, his immediate release from the custody of the Monroe County Sheriff and restoration to parole supervision. The respondents oppose.[FN1] The Court, having duly considered the parties' moving papers, oral arguments in support of their respective positions and supplemental written submissions, and having inquired into the cause of relator's detention, now makes the following findings of fact and conclusions of law.

The underlying facts are undisputed. Relator, subject to parole supervision, was arrested and ultimately charged with unlawful possession of marijuana (Penal Law § 221.05) following a search of his person in conjunction with a parolee spot check joint task force detail. Consequently, a parole warrant was issued in which relator was charged with violating two conditions of release; to wit: (1) that he engaged in behavior which violated the provisions of law providing for a penalty of imprisonment; and (2) that he failed to comply with the written instructions of his parole officer by possessing marijuana. At the preliminary parole revocation hearing, the parole officer indicated her intent to proceed on the former charge and subsequently called two witnesses. Following the conclusion of proof, over relator's explicative objection, the hearing officer found probable cause that relator's arrest for unlawful possession of marijuana constituted a violation of a condition of his release in an important respect as he engaged in conduct which violated the Penal Law. No finding was made relative to the second charge — simple marijuana possession — and relator was detained pending a full revocation hearing currently scheduled for January 30, 2019.

Initially, respondent Department of Corrections and Community Supervision (DOCCS) challenges the procedural posture of this matter seeking dismissal of the petition. In the alternative, respondent DOCCS implores the Court to convert the petition (Civil Practice Law and Rules [CPLR] § 103) to proceed in accordance with CPLR Article 78, essentially remitting the matter for a de novo preliminary parole revocation hearing. In support of their application in opposition, respondent DOCCS correctly observes the applicability of the second charge — simple marijuana possession — to the alleged underlying conduct, and urges this Court to render a favorable probable cause determination notwithstanding the absence of such an analysis and decision by the preliminary hearing officer. While the Court certainly appreciates the inherent [*2]logic presented by respondent DOCCS, it remains unpersuaded by the arguments presented, and for the reasons which follow, relator's application is granted.

Contrary to respondent's contention, the instant application is properly before the Court. It is well-settled that habeas corpus is a proper remedy for review of parole revocation proceedings (see People ex rel. VanFossen v Dillon, 72 AD2d 166 [4th Dept 1980] [citations omitted]); however, a reviewing court's authority is limited as to determinations of whether the record supports a sufficient finding of probable cause and to whether the required procedural rules were followed (see People ex rel. Vidal v New York State Div. of Parole, 16 Misc 3d 1109(A) [Sup Ct, New York County 2007, Dawson, J.]). The Court is acutely aware that habeas corpus relief "does not lie where there are other procedures available for review of the challenged error (People ex rel. Quartararo v Demskie, 238 AD2d 792, 793 [3d Dept 1997], lv denied 90 NY2d 802 [1997]). To that end, preliminary parole revocation hearings are not subject to administrative appeal thereby obviating the exhaustion requirement relied upon by respondent DOCCS (see generally Executive Law § 259-i [4] [a]; People ex rel. Watson v Commissioner of New York City Dep't of Correction, 149 AD2d 120 [1st Dept 1989]; People ex rel. Johnson v O'Flynn, 141 AD3d 1107 [4th Dept 2016]; contrast People ex rel. Scott v Babbie, 248 AD2d 909 [3d Dept 1998], lv denied 92 NY2d 803 [1998] [habeas proceeding challenging a final parole revocation hearing properly denied as administrative appeal not exhausted]). Furthermore, as the sole basis for realtor's continued incarceration is the parole warrant (see Zientek v Herbert, 199 AD2d 1075 [4th Dept 1993]), that success on the merits would entitle him to immediate release (see People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391 [1987]), and there are no matters extraneous to relator's release to be determined (see People ex rel. Turner v Sears, 63 AD3d 1404 [3d Dept 2009]), conversion of this proceeding pursuant to CPLR Article 78 is not warranted (see generally Civil Practice Law and Rules [CPLR] §103). To be certain, relator challenges legality of his detention, not the administrative determinations pertaining to his parole (see People ex rel. Justice v Russi, 226 AD2d 821 [3d Dept 1996] [CPLR Article 78, as opposed to Article 70, is the appropriate mechanism to challenge parole discretionary administrative decisions]).

Notwithstanding the procedural impropriety of converting the action, the alternative relief sought by respondent DOCCS is unavailable inasmuch as it is inconsistent with the remedial objective intrinsic to remittitur. In this case, the preliminary hearing was conducted in accordance with the governing statutes and regulations (see 9 NYCRR § 8005.7 [a] [4]; Executive Law § 259-i [3]; contrast People ex rel. Gonzalez v Warden of NY Correctional Inst. for Men, 160 AD2d 545 [1st Dept 1990]) and the record is sufficient so as to permit proper review thereof. In other words, further proceedings are unnecessary to render a determination as to the controversy before this Court. As there is no requirement that the preliminary hearing officer render a decision as to each charge, returning this matter for the conduction of a de novo preliminary revocation hearing affords respondent DOCCS the proverbial second bite at the apple to correct what amounts to be a misapprehension and misapplication of the law — a correction this Court is aptly positioned to redress.

Respondent DOCCS alternatively requests the Court to sue sponte find probable cause relative to the second charge alleging simple marijuana possession in violation of the written rules governing relator's release. That respondent DOCCS may have successfully proved this [*3]violation is inconsequential as it is entirely conjecture as to whether the hearing officer — without the mistaken belief that such conduct was subject to imprisonment — would have concluded that the violation was in an important respect. As it is wholly improper to do so, the Court declines to substitute its judgment for the preliminary hearing officer and make any findings in this regard (see generally Vidal, 16 Misc 3d 1109 [A]).

Accordingly, the Court now turns to the merits of relator's petition.

As advanced by relator and duly conceded by respondent DOCCS, the preliminary hearing officer erred by finding probable cause that petitioner violated the condition of release prohibiting him from engaging in behavior violative of a law which is punishable by imprisonment. The offense of unlawful possession of marijuana is subject only to the penalty of a fine absent certain circumstances not applicable in the instant case (see generally Penal Law § 221.05) thereby rendering the probable cause determination a legal fallacy.

Although the Court declines to opine as to the circumstances which led to the parole revocation proceeding, parenthetically, a parolee's possession of marijuana incites significant concern as it implicitly suggests, inter alia, deficiencies relative to rehabilitation, a disregard for the rule of law or inability to reintegrate into society as a contributing member. Nevertheless, the fundamental tenets of due process entitle an accused parole violator to certain procedural safeguards in determining whether his liberty interest should be infringed. In a similar vein, "the diminished constitutional protection[s]... extended to [parolees] heightens the importance of compliance with statutory procedures" (Watson, 49 AD2d at 123). With these principles in mind, the Court now finds itself in the arduous position in which it must weigh the egregiousness of relator's alleged conduct against the errors committed by respondent DOCCS. It is the latter consideration that is prevailing in this Court's analysis. The legal doctrine upon which our Constitutions are premised and the jurisprudence which followed requires the integrity of the parole revocation procedure to be upheld even at the expense of an unsavory outcome. It is the means which justify the ends, never the reverse. Thus, as respondent DOCCS failed to establish, as a matter of law, probable cause to believe that the relator violated a condition of his parole in an important respect at the preliminary parole revocation hearing held on October 30, 2018 in the County of Monroe and State of New York, relator's petition must be granted.

It is hereby ORDERED that relator's application is granted; and it is further

ORDERED that the Warrant for Retaking against the relator dated October 19, 2018, Warrant No. 813837, is hereby vacated and cancelled and is of no further force or effect; and it is further

ORDERED that the notice of violation against the relator is hereby dismissed in its entirety; and it is further

ORDERED that the relator shall be immediately released from the custody of the Monroe County Sheriff; and it is further

ORDERED that the relator shall be immediately restored to parole supervision as soon as practicable, pursuant to 9 NYCRR §§ 8000 — 8011.

Dated: December24, 2018

Rochester, New York


Monroe County Court Judge and Acting State Supreme Court Justice Footnotes

Footnote 1:Respondent Monroe County Sheriff takes no position relative to the merits of the substantive issues presented to the Court asserting that the warrant holding relator is presumptively valid.