Opinion
250674-2011.
Decided June 30, 2011.
Nora Carroll, Esq., Kerry Elgarten, Esq., The Legal Aid Society of NY, Parole Revocation Defense Unit, New York, New York, for Petitioner.
Eric T. Schneiderman, Attorney General, by Michael Arcati, Esq., Assistant Attorney General, New York, New York, for Respondent Division of Parole.
Petitioner Patrick Giordani (hereinafter Petitioner) seeks a writ of habeas corpus directed to the Warden of Otis Bantum Correction Center at Rikers Island and the New York State Division of Parole ordering that Parole Violation Warrant #604953 issued against Petitioner be vacated, canceling any outstanding parole warrants against him, and compelling his releases from custody. The writ further directs that the warden produce Petitioner before the Court at the Donald J. Cranston Judicial Center, 240 Mandanici Road, East Elmhurst, Queens County.
Petitioner was incarcerated following his conviction for robbery in the second degree (see, Penal Law § 160.10) and assault in the first degree (see, Penal Law § 120.10). He was sentenced to seven and a half years and ten years, respectively, and five year post release supervision. Petitioner was released to parole supervision on March 1, 2010, after agreeing to conditions contained in the Certificate of Release to Parole Supervision. Petitioner is required to abide by the release conditions until March 17, 2015 (Exhibit A).
Among the release conditions was Condition # 8 in which Petitioner agreed to obey all laws which provide for a penalty of imprisonment, and agreed to avoid threatening public safety. Following his release, New York City Police arrested Petitioner on December 15, 2010, for larceny and assault charges arising two days before and which constitute violation of his release conditions. Consequently, the parole authorities issued a parole violation warrant charging Petitioner to be in violation of his parole conditions (Exhibit B). Specifically, the Division of Parole claims Petitioner stole his roommate's cell phone and subsequently assaulted him in retribution for reporting the theft to police.
Condition # 8 provides: "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 well being of myself or others" (Exhibit A).
The specific parole related charges against Petitioner are: (Charge 1) — Giordani violated Rule # 8 of the release condition on December 7. 2010, when he removed his roommate's cell phone, and (Charge 2) — Giordani violated Rule # 8 of the release condition on December 13. 2010, when he assaulted his roommate at his residence (see, Violation of Release Report [Exhibit B])
Once in custody, Petitioner waived a preliminary parole revocation hearing (Petition ¶ 10). His final hearing was adjourned twice and then assigned on March 1, 2011, to the Court's K Calendar where the case was to await disposition of the criminal charges. The grand jury returned a true bill covering Criminal Mischief, an A misdemeanor, with no affirmative action on the assault and robbery charges.
The warrant was lodged against Petitioner after his arrest for attempted robbery, assault, and other charges in Kings County (Exhibit C, Criminal Complaint Docket No. 2010KN098726). The Parole Division advised the administrative law judge reviewing the parole revocation that the agency intends to prosecute Petitioner upon parole violation charges including those based upon criminal charges that the grand jury allegedly declined.
Petitioner's Position
Petitioner challenges the Division's right to proceed against him upon charges contained in the Violation of Release Report, arguing that collateral estoppel prohibits prosecution upon grounds of assault and robbery. Petitioner contends collateral estoppel applies because an indicting grand jury only returned a true bill upon criminal mischief charges. Petitioner says collateral estoppel applies in the context of a parole revocation when a grand jury's action involves an issue of ultimate of fact (see, People ex rel. Jones v. New York State Division of Parole, 168 Misc 2d 937 [Sup Ct. Bronx 1996]).
Petitioner says because he testified before the grand jury and the victim, one Mr. Estepa, also testified, the only conclusion is that the grand jury returned a no true bill after evaluating his testimony and such failure to indict is a determination upon the merits. Such a determination is sufficiently final to invoke collateral estoppel.
Respondents' Position
Respondents counter that the instant petition must be dismissed because Petitioner failed to meet his burden of proving the elements required for what amounts to a "Writ of Prohibition." Significantly,
A Writ of Prohibition is not mandatory, but may issue in sound discretion of a court (see generally, La Rocca v. Lane, 37 NY2d 575 [1975]). A Writ of Prohibition is properly an Article 78 (see generally, Matter of Green v. DeMarco, 2011 NY Slip Op 5332 [4th Dept. 2011]).
Respondents say, the Division has not proceeded upon any parole charge related to Petitioner's newest criminal proceeding. A petition seeking a writ of prohibition should only be granted upon a showing that a body or officer is about to proceed without or in excess of its jurisdiction (see generally, Matter of Garner v. New York State Dept. of Correctional Services , 10 NY3d 358). Such relief would be extraordinary and should only be granted in limited circumstances (see generally, Nicholson v. State Com. on Jud. Conduct, 50 NY2d 597).
The elements for a Writ of Prohibition include: (1) a body or officer acting in a judicial or quasi judicial capacity, (2) the body or officer proceeding in excess of its jurisdiction, and (3) petitioner possesses a clear legal right to relief requested (see, Town of Huntington v. New York State Div. of Human Rights, 82 NY2d 783). The writ maybe denied where a trial court, in its discretion, concludes the remedy is not warranted because, for example, the harm is not sufficiently grave, or because other proceedings in law or equity could correct any alleged error ( id.).
Respondents say Petitioner failed the burden of showing need for an extraordinary remedy. In fact, Respondents see no evidence that the Division intends to proceed with charges rejected by the Grand Jury. Those rejected charges cover events on December 13, 2010, while the remaining charge relates to Petitioner's conduct on December 7, 2010, which involved the original cellular telephone theft. Likewise, according to Respondents, relief is premature because Petitioner's final hearing has not occurred and relief is too contingent. "Where the harm sought to be enjoined is contingent upon an event which may not come to pass, the claim to enjoin the purported hazard is non justiciable as wholly speculative and abstract" (see Cubas v. Martinez , 33 AD3d 96, 103 [1st Dept. 2006]).
Further, Respondents stress that dismissal of charges by a grand jury does not estop the Division from proceeding against Petitioner for the same misconduct (see generally, McWhinney v. Russi, 228 AD2d 980 [3rd Dept. 1996]). A grand jury's dismissal does not preclude a subsequent parole revocation based upon the same facts (see generally, People ex rel. Pickett v. Ruffo, 96 AD2d 128 [3rd Dept. 1983]).
Reply
While conceding that a "no true bill" does not always prohibit parole revocation, Petitioner tries to distinguish this case upon grounds that the lack of a true bill here resulted because the grand jury credited Petitioner's testimony when deciding not to indict (see generally, People ex rel. Jones v. New York State Division of Parole, supra.). Petitioner views the no true bill as permanent because more than two months elapsed since the grand jury's decision in the criminal matter. Further, he disputes that Respondents can proceed upon remaining counts which involve other days. Petitioner argues that Respondents are barred concerning December 13 activity and can proceed only upon events occurring at other times. If the Court finds procedural issues with Petitioner's habeas corpus application, the appropriate remedy is to convert the application to a CPLR Article 78 proceeding, rather than dismissal (see generally, People ex rel. Harper v. Warden, Rikers Is. Correctional Facility , 21 Misc 3d 906 [Sup. Ct. Bronx 2008]). Petitioner otherwise rejects the idea that his application is premature.
In summary, Petitioner asks that the habeas corpus writ be issued to facilitate inquiring into the legality of his detention and to cancel, with prejudice, the parole delinquency declared against him. Naturally, Petitioner wants to be released from custody. In the event the Court determines procedural defects exist, Petitioner asserts that the Petition should be converted into an Article 78 proceeding.
Legal Discussion
Petitioner's application for habeas corpus relief is denied upon the facts presented here. Even if the application is viewed as a request for the extraordinary remedy of prohibition, such relief lies only where there is a clear legal right and only when a court (if a court is involved) acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction (see generally, Rush v. Mordue, 68 NY2d 348). The Court cannot find that Petitioner has not established a clear legal right which must be upheld.
Permitting liberal use of the extraordinary remedy of prohibition so as to achieve, in effect, premature appellate review of issues properly reviewable in the regular appellate process is against public policy and would serve only to frustrate speedy resolution of disputes and to undermine statutory and constitutional schemes of ordinary appellate review (see generally, Rush v. Mordue, supra.). The Court, in its discretion, refuses to prohibit proceeding upon the facts that were the subject of the grand jury inquiry.
Also, the Court rejects "collateral estoppel" as a ground for prohibition here because the grand jury's action can be viewed in various ways. The Court rejects Petitioner's contention that collateral estoppel bars revocation of parole because his indictment on the underlying criminal charges resulted in no bill by the Grand Jury. The dismissal of criminal charges by a Grand Jury does not preclude a subsequent parole revocation based upon the same facts (see generally, McWhinney v. Russi, 228 AD2d 980 [3rd Dept. 1996]; People ex rel. Pickett v. Ruffo, 96 AD2d 128 [3rd Dept. 1983]).
Further, the Court dismisses Petitioner's invocation of People ex rel. Jones v. New York State Division of Parole, supra. The case is distinguishable because the record in Jones contains a copy of the grand jury transcript which is lacking here.
When a defendant appears before a Parole Board for a hearing on an alleged violation, it is an administrative proceeding not a criminal trial. The parole authorities have the burden of proving a defendant's alleged misconduct only by a preponderance of the evidence (see generally, Banks v. Person, 49 F. Supp.2d 119 [ED NY 1999]). By contrast, the purpose of a criminal trial is to determine the guilt of a defendant and the prosecution has the burden of proving such guilt beyond a reasonable doubt. Therefore, ordinarily, a finding by a Parole Board has no effect upon a subsequent criminal prosecution and vice versa (see, People ex rel Jones, supra.). When a grand jury refuses to indict because the People do not prove their case, that body does not make a final determination of any issue of ultimate fact (see, People ex rel. Jones v. State Div. of Parole, supra.). Therefore, such a determination by a grand jury is not a final determination that the acts alleged did not occur (see generally, People v. Jacob, 161 Misc 2d 768 [Sup. Ct. Kings 1994]). The Court rejects Petitioner's explanation for failing to obtain the grand jury transcript and the Court has only his assertion that the grand jury failed to indict because of his testimony or disbelief of the victim. Petitioner failed his burden of proof to show that the Division is proceeding in excess of its jurisdiction, and fails to show he possesses a clear legal right to relief requested.
Based upon the foregoing, Petitioner's relief is denied. Because of the above, the Court does not address Petitioner's additional arguments.
The Court read the following papers in deciding this matter: Verified Petition for Writ of Habeas Corpus with attachments; Affirmation of Michael Arcati, Esq., in Opposition to Petition for Writ of Habeas Corpus with attachments; Affirmation of Kerry Elgarten, Esq., in reply to Opposition to Writ of Habeas Corpus.
ORDERED that the branch of the Petition applying for a Writ of Habeas Corpus seeking release of Petitioner from Respondents' custody is DENIED, and it is further
ORDERED that the branch of the Petition seeking to vacate the parole violation warrant against Petitioner is DENIED, and it is
ORDERED that the branch of the Petition seeking, in the alternative, to convert this application to a CPLR Article 78 proceeding is DENIED, and it is further
ORDERED that the Clerk of the Court is directed to terminate this matter.
The foregoing constitutes the decision and order of this Court.