Opinion
250942/11
09-14-2011
The People of the State of New York ex rel. Dawud Hall, Petitioner, v. Warden, George Motchan Detention Center, NEW YORK STATE DIVISION OF PAROLE, Respondents.
Appearances of Counsel Michael Keane, Esq. Assistant Attorney General Steven Banks, Esq. Amy Swenson, Of Counsel The Legal Aid Society of NY Parole Revocation Defense Unit.
Appearances of Counsel Michael Keane, Esq. Assistant Attorney General.
Steven Banks, Esq. Amy Swenson, Of Counsel The Legal Aid Society of NY Parole Revocation Defense Unit.
Edgar G. Walker, J.
Petitioner Dawud Hall's writ of habeas corpus seeking to vacate warrant #635148 and restore petitioner to parole supervision is dismissed.
Petitioner was convicted of robbery in the second degree and was sentenced to a maximum prison term of three years and six months. On November 12, 2010, petitioner was released to parole supervision. On March 30, 2011, petitioner was returned to custody pursuant to an arrest in Bronx County. On March 31, 2011, while petitioner was still in custody, the New York State Division of Parole (the Division) lodged parole warrant # 635132 (the first warrant). On April 4, 2011, petitioner was served with a Notice of Violation and a Violation of Release Report which charged three violations of the conditions of his release. Charge #1 alleged that on March 29, 2011 and thereafter petitioner failed to report to his parole officer. Charges #2 and #3 alleged violations arising out of an incident that occurred on March 27, 2011 which led to his March 30th arrest. Charge #4 was added to the first warrant in a Supplementary Violation of Parole Report dated April 7, 2011 and alleged that petitioner threatened the safety and well-being of his parole officer when she served him with the Notice of Violation and Violation of Release Report. On April 15, 2011, a preliminary hearing (the first preliminary hearing) was held. The hearing officer found that Division failed to establish probable cause on Charge #1. Charges #2 and #3 were "withdrawn & dismissed" and the warrant was lifted. Charge #4 was not addressed at the hearing.
In her decision, the hearing officer states that no probable cause was found as to Charge #2 but it is clear from the transcript of the proceeding and other language in the decision that this is a scrivener's error.
On April 16, 2011, the Division lodged warrant # 635148 (the second warrant). The Violation of Release Report for this warrant specifies two charges. Charge #1 restates verbatim the language of Charge #4 in the first warrant. Charge #2 alleges a different rule violation arising out of the same incident as alleged in Charge #1. After a preliminary hearing (the second preliminary hearing), probable cause was found on Charge #1. Charge #2 was not addressed.
Petitioner contends that he was denied the right to due process because the Division filed a second warrant which included the exact same charge that had been included in a prior, vacated warrant and probable cause to believe that he violated a condition of his parole was found on that charge. According to petitioner, respondents were estopped from proceeding on Charge #1 at the second preliminary hearing.
Respondents argue that they were not estopped from proceeding on this charge at the second preliminary hearing because this charge was not addressed at the first preliminary hearing. Alternatively, respondents argue that they were not estopped from proceeding on this charge because they were precluded from raising the charge at the first preliminary hearing. When a parole officer has reasonable cause to believe that a parolee has violated a condition of parole, the parole officer may report such facts to a member of the board of parole, or to any officer of the department designated by the board, who may then issue a warrant for the arrest of the parolee. Executive Law § 259-i(3)(a)(i). Within three days of the execution of the warrant, the alleged violator must be given a written notice of the time, place and purpose of the preliminary revocation hearing. Executive Law § 259-i(3)(c)(iii). This notice must inform the alleged violator of the conditions of parole or post-release supervision which are alleged to have been violated and in what manner. Within fifteen days of the execution of the warrant, the Division is required to establish probable cause to believe that the parolee "has violated one or more conditions of his release in an important respect" at a preliminary hearing or to restore him to supervision. Executive Law § 259-i(3)(c)(vi), (vii).
Respondents' argument that petitioner has not overcome the "presumption of legality" as to the challenged proceedings lacks merit.
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The court has not found any published case directly on point. The cases petitioner relies upon are distinguishable. In People ex rel. Howard, 14 Misc 3d 874 (Sup. Ct. Bx. County, 2007), at the preliminary hearing, the Division was not able to establish probable cause on any of the charges (all based on a single arrest) and the warrant was dismissed. On that same date, the Division filed a second warrant which contained a new charge based on that same arrest. In sustaining the writ, the court held that, as a matter of due process and fundamental fairness, where all of the violations arise out of the same incident, and there is no legitimate reason for not including the violations together in one warrant, the charges should be brought together. Similarly, in People ex. rel. Overton v. NY State Div. of Parole, Docket No. 251709-08 (Sup. Ct. Bx. County, 2009), all of the charges in the first warrant arose from the same incident. At the preliminary hearing, the Division was unable to establish probable cause on any of the charges and the warrant was lifted. On that same date, the Division lodged a second warrant including new charges arising out of the same incident as those in the first warrant. In sustaining the writ, the court held that the Division could not be given a second opportunity to substantiate a charge which the Division was aware of prior to the execution of the warrant where the new violations arose out of the same incident and there was no legitimate reason proffered for not including the violations together in the original warrant. In People ex. rel. Galacia v. NY State Div. of Parole, Index No.1036/90 (Sup. Ct. Bx. County, 1990), the Division executed a parole warrant on October 27, 1989 against a parolee, already in custody due to an unrelated arrest on October 24, 1989, based upon parole violations stemming from the parolee's allegedly absconding from parole supervision in July of 1989. On November 6, 1989, a preliminary hearing was held, the Division failed to establish probable cause on any of the charges, all of the charges were dismissed and the warrant was vacated. On November 16, 1989, the Division executed a second warrant against the parolee based on his October 24, 1989 arrest. The Division was informed of this arrest on or about October 26th. At the preliminary hearing, probable cause was found on the charge that the parolee failed to notify his parole officer of the October 24th arrest — the only charge entertained at the hearing. In sustaining the writ, the court held that the Division may not be afforded a second opportunity to substantiate a charge which the Division was clearly made aware of prior to the execution of the first warrant. In its decision, the court noted that the Division chose not to proceed on this charge until they were unable to obtain a finding of probable cause on any of the charges included in the previous warrant.
Unlike Howard, Overton and Galacia, in this case, the subject charge was not entertained at the first preliminary hearing, does not arise out of the same incident as any charge that was entertained at the first preliminary hearing, and was not known to the Division at the time the first warrant was executed. Further, contrary to petitioner's contention, these cases do not stand for the proposition that merely because a charge is included in the violation of parole paperwork at the first preliminary hearing it is fundamentally unfair and a due process violation to include that charge in a subsequent warrant. Rather, these cases reflect concerns not implicated here, namely: (1) that a single incident involving multiple violations, if filed one at a time rather than all together, would result in an unreasonable extension of the fifteen-day period and (2) that, in the absence of a legitimate reason, it is fundamentally unfair not to include all violations known to the Division prior to the execution of a warrant together in one warrant.
Moreover, the second preliminary hearing did not amount to "a mere rehash of the first proceeding," as petitioner argues, since Charge #4 was not entertained at the first preliminary hearing. People ex rel. McEneny v. NY State Div. Of Parole, 268 AD2d 250, 250 quoting People ex rel. Williams v. Rodriguez, 256 AD2d 1240, 108 AD2d 1007, 1008. And, petitioner is unable to point to any authority for the assertion that Charge #4 was dismissed as a matter of law when the warrant was lifted.
The cases upon which respondents rely are likewise inapposite. These cases stand for the proposition that there is no absolute requirement that the Division file all charges that it has knowledge of in a single warrant. While this is undoubtedly true, it has no application here.
The Division may not issue identical parole warrants in an attempt to avoid the time period within which a final revocation hearing must be held. Matter of Bagby v. NY State Div. of Parole, 211 AD2d 715. Nor may the Division issue warrants to indefinitely hold an accused violator in custody for as long as the Division needs to build its case as this would frustrate the purpose of the fifteen-day rule. cf. Blasco v. NY State Div. of Parole, 2011 WL 3925635 (Sup. Ct. Bx. County).
According to respondents, the Division did not proceed with Charge #4 at the first preliminary hearing because it believed that it was precluded from doing so. At the second preliminary hearing, P.O. Pozo testified that she did not "use" Charge #4 at the first preliminary hearing because she believed that the Division was not allowed to use a charge in a Supplementary Violation of Release Report at a preliminary hearing. P.O. Pozo testified at both hearings. Charge #4 stems from threatening statements petitioner allegedly made to P.O. Pozo. The hearing officer found probable cause based solely on P.O. Pozo's testimony. It seems clear that the Division could easily have substantiated this charge in the first preliminary hearing, just as it did in the second preliminary hearing, with P.O. Pozo's testimony. As such, there is no reason to believe that the Division had some nefarious motive not to proceed on this charge.
Moreover, there is appellate authority which lends support to the Division's position. In People ex. rel. Watson v. Commissioner of NY City Dept. of Corrections, 149 AD2d 120, the petitioner failed to keep his scheduled appointment, on December 21, 1998 at 9:30 a.m., with the Division's Employment Program, a condition of his parole. He did not report to the office until approximately 7:15 p.m. that evening, at which point he was seized by four or five parole officers. He was immediately taken into custody, handcuffed and placed in leg shackles. After he was thus restrained, a parole officer questioned him concerning his failure to keep the appointment scheduled for 9:30 a.m. that day. Petitioner remained silent and refused to give any explanation for the failure to report as scheduled. At a preliminary hearing, the hearing officer found that there was probable cause to sustain Charge #4 of the five charges brought against petitioner. This charge alleged that petitioner violated the conditions of his parole by failing to answer the questions directed to him by the parole officer. The hearing officer did not address two of the charges, which related to a December 2, 1998 arrest, but did find that the Division failed to establish probable cause on charges relating to his employment and the missed December 21st appointment. The First Department framed the issue as whether the respondent agency had observed the procedural requirements set forth in section 259-i with respect to revocation of parole and found that it had not.
The Court stated that "the showing of probable cause pursuant to section 259-i (3)(c)(vi) does not relieve respondent Division of Parole of the burden to demonstrate a basis for the issuance of a warrant in the first instance pursuant to subdivision (3)(a)(i)." Id. at 123. Thus, the Court found that the "act comprising probable cause (remaining silent in response to the parole officer's questioning) cannot serve as a predicate for detention in that it occurred after petitioner was already in custody, handcuffed and shackled to a chair." Id.
Based on Watson, a finding of probable cause solely on Charge #4 would have been insufficient to sustain the warrant because the alleged conduct occurred after the warrant was executed and petitioner was in custody. Therefore, proceeding on Charge #4 at the first preliminary hearing would have served no purpose.
Although the supplementary violation of release report cannot be used to establish probable cause at the preliminary hearing, it can raise additional charges which may thereafter be entertained at the final revocation hearing. People ex. rel. Kinzer v. Williams, 256 AD2d 1240 . Here, the inclusion of the supplementary violation of release report in the paperwork at the first preliminary hearing resulted in providing petitioner with early notice of the additional charge. Petitioner is hard-pressed to complain that his rights were violated because he was provided with notice too soon.
Under the circumstances, the court finds that the petitioner has not been denied due process and the writ is dismissed.
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Hon. Edgar G. Walker, J.S.C.