Matter of Lopez
Annotate this CaseDecided on May 16, 2023
City Court of Rochester, Monroe County
In the Matter of Rufino Lopez, Appellant.
MZ-02979-22/RO
For the Appellant:
Jane I. Yoon, Esq.
Assistant Public Defender
Monroe County Defender's Office
10 N. Fitzhugh St.
Rochester, NY 14614
For the Respondent:
Heather S. Odom, Esq.
Assistant Counsel to the Board of Parole
New York State Department of Corrections
and Community Supervision
The Harriman Campus - Bldg. 4
1220 Washington Ave.
Albany, NY 12225
Melissa L. Barrett, J.
Appellant, Rufino Lopez, moves this Court for an order transferring an administrative appeal of a parole revocation decision from the Board of Parole ("Board") to Rochester City Court. Alternatively, appellant moves for an order to amend his notice of appeal filed with the Board to indicate he is appealing to Rochester City Court (i.e. a designated appellate court), or to extend the time to file a notice of appeal pursuant to Criminal Procedure Law ("CPL") 460.30.
Most of the facts are not in dispute. Appellant was represented by the Monroe County Public Defender's Office in a contested parole revocation hearing. On September 23, 2022, an [*2]administrative law judge issued a written decision revoking appellant's parole. A copy of the decision is attached to appellant's moving papers as exhibit C. Appellant was found to have changed his parole approved address without permission on or about December 10, 2021, left the state without permission, failed to update his residence with local law enforcement as required, and failed to comply with all the requirements of the Sex Offender Registration Act. Furthermore, the decision states appellant did not have any contact with his parole officer from December 2021-May 2022 until he was found in another state by the US Marshal. Lastly, appellant did not update his address through the Sex Offender Registry as required.
On October 13, 2022, appellant provided his attorney with a notice of appeal that counsel filed with the Board. The notice of appeal did not indicate appellant was appealing to Rochester City Court (i.e. a designated appellate court). On November 14, 2022, appellant's attorney received transcripts from the revocation hearing, and began working on the appeal in January of 2023. After reviewing the transcripts, appellant's attorney discovered the appeal could be heard in Rochester City Court because one of the sustained violations constituted a crime. As a result, appellant now seeks to transfer the administrative appeal before the Board to Rochester City Court.
The Board opposes the motion for several reasons. First, the Board argues Rochester City Court does not have jurisdiction to hear the appeal because none of the sustained violations constitute a crime. Specifically, the violations sustained by the hearing officer do not state appellant failed to register his address change within 10 days, as required under Correction Law § 168-f(4). Second, there is no statutory authority to transfer an administrative appeal to a criminal court. Third, appellant's notice of appeal fails to comply with CPL 460.10 and a New York State Office of Court Administration form used to appeal parole revocation decisions to criminal court. Fourth, appellant's attorney had a duty to advise him of his right to appeal to the Board or another criminal court and failed to do so. Fifth, appellant failed to meet the factors detailed in CPL 460.30(1) in order to extend the time for taking appeal.
On August 8, 2022, the "Less is More" statute took effect related to parole. Relevant here, any decision by a hearing officer revoking parole can be administratively appealed to the Board in accordance with rules promulgated by the Board. Executive Law § 259-i(4)(a). Administrative appeals must be heard by the Board where all the sustained violations are technical (and do not constitute a crime). However, where any of the charges sustained by the hearing officer would constitute a misdemeanor or felony if such charge were or had been brought in a criminal court, the releasee may, in lieu of an administrative appeal to the board pursuant to subdivision four of this section, appeal such determination to the lowest level of the following courts serving the jurisdiction in which the hearing was held or in which any such sustained conduct was alleged to have occurred: city court, district court, county court or supreme court; provided, however, that if any such misdemeanor or felony charge was prosecuted in any city, district, county or supreme court, such appeal shall be filed in that court. Executive Law § 259-i(4-a)(a) (emphasis added). By statute, the releasee is given the option to appeal to the Board or to criminal court where a nontechnical violation (or conduct constituting a new crime) is sustained.
For appeals to a criminal court, "[t]he appeal shall be commenced by the filing of a notice of appeal in the same manner as an appeal to the appellate division as set forth in paragraphs (a), [*3](b), (d) and (e) of subdivision one and subdivision six of section 460.10 of the criminal procedure law." Executive Law § 259-i(4-a)(b). Pursuant to CPL 460.10(a), "[a] party seeking to appeal from a judgment or a sentence or an order and sentence included within such judgment, or from a resentence, or from an order of a criminal court not included in a judgment, must, within thirty days after imposition of the sentence or, as the case may be, within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court in which such sentence was imposed or in which such order was entered a written notice of appeal, in duplicate, stating that such party appeals therefrom to a designated appellate court."
Where a notice of appeal is not timely or properly filed, CPL 460.30(1)(a) gives the appellate court the authority to extend the time for taking appeal where the failure to make a timely application is a result of improper conduct of a defendant's attorney. (see generally People v. Zanghi, 159 AD2d 1030 [4th Dept. 1990]), (People v. Corso, 40 NY2d 578 [1976]).
At the outset, the Court finds appellant to be a nontechnical violator who can appeal to criminal court. The hearing officer sustained a violation pertaining to appellant's failure to update his residence with local law enforcement and found appellant failed to comply with all the requirements of the Sex Offender Registration Act. Additionally, the decision stated appellant did not update his address through the Sex Offender Registry as required. Clearly, the charges sustained constitute a new misdemeanor or felony had they been brought in criminal court. Moreover, appellant was convicted in this court (Morris, J.) of failing to register pursuant to Correction Law § 168-f(4) based upon similar conduct.
While appellant can appeal to criminal court, there is no mechanism in the Executive Law to transfer an administrative appeal to another appellate court. Given such, appellant's motion to transfer the appeal to Rochester City Court is denied as not authorized by law.
With respect to the notice of appeal that was filed with the Board, the Court finds it to be properly filed in the court where sentence was imposed (i.e. the Board). See CPL 460.10(a). However, as conceded by appellant, the notice of appeal was lacking language that appellant was appealing to a designated appellate court (i.e. Rochester City Court). Neither the Executive Law or CPL provide for amendment of a notice of appeal. Therefore, appellant's motion to amend the notice of appeal is denied.
Notwithstanding such, respondent concedes that appellant's counsel failed to advise appellant of his right to appeal to Rochester City Court. As a result, appellant established improper conduct by his attorney in failing to advise him of his right to appeal to Rochester City Court or assist him with filing such. (see generally People v. Zanghi, 159 AD2d 1030 [4th Dept. 1990]), (People v. Corso, 40 NY2d 578 [1976]). Appellant's motion pursuant to CPL 460.30(1)(a) to extend the time for taking appeal is granted. Appellant is required to file and serve the notice of appeal by June 20, 2023.
Finally, the Court notes it received correspondence from Respondent filed May 12, 2023 seeking relief for an additional reason not argued in previously submitted motion papers. The Court declines to grant the requested relief as Respondent failed to seek the relief in a written motion upon reasonable notice to the opposing party.
This shall constitute the Decision and Order of the Court.
DATED: May 16, 2023
___________________________
Hon. Melissa L. Barrett
Rochester City Court Judge
ENTER:
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