Opinion
340458-2011.
Decided September 26, 2011.
Simone Petromelis, Esq., O'Connor Petromelis, New York, New York, for Petitioner.
Eric T. Schneiderman, Attorney General, by Michael Arcati, Esq., Assistant Attorney General, New York, New York, for Respondent Department of Correction.
Petitioner James Barber (hereinafter Petitioner) seeks a writ of habeas corpus directed to the Warden of Anna M. Kross Center at the Rikers Island Correctional Center and the New York State Department of Correction and Community Supervision (hereinafter DOCCS). The writ seeks to vacate Parole Warrant #6188721 issued against Petitioner, cancelling alleged parole delinquencies and releasing Petitioner from custody in the event he is not otherwise incarcerated.
Background
Petitioner was originally convicted of attempted robbery in the first degree (Penal Law § 160.15) for which he was sentenced to a maximum prison term of six years with five years post release supervision. Petitioner's release to parole supervision occurred on October 15, 2010, after Petitioner agreed to conditions in the Certificate of Release to Parole Supervision (Exhibit A). Critical to this case, Condition # 2 requires Petitioner to make all scheduled office visits to his parole officer when directed (see Exhibit A). In conformance with that condition, Petitioner immediately began reporting to his parole officer upon release until he missed the March 9, 2011 meeting. He missed that meeting only after the parole officer excused him from his March 2, 2011, meeting because he was ill (Exhibit E, Tr. p. 11). As a result of missing the meeting, Parole Officer Michael Dunget issued a Violation of Release Report against Petitioner requiring that Petitioner's parole be revoked (Exhibit B).
Condition # 2 provides: "(I) will make office and/or written reports as directed." (Exhibit A).
At the preliminary hearing, Petitioner attempted to excuse his absence upon grounds that his shelter residence, provided by DOCCA, was bed bug infested (See, Exhibit D, pp. 12to 16).
Petitioner's Position
Petitioner bases his writ request on two grounds. First, he argues entitlement to release because Respondents failed to provide him with a prompt final revocation hearing within 90 days of the preliminary hearing (see generally, People ex rel. Betancourt v. Warden, 149 AD2d 356 [1st Dept. 1989]). Such delay is a violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, § 6, of the New York State Constitution.
Second, as raised in Petitioner's amended petition, Respondents failed to timely serve him with a notice concerning his preliminary revocation hearing, thereby negating the proceeding. Petitioner says that the statutorily required Notice of Violation was not served within three days after the warrant's execution (see, Executive Law § 259-i[c][iii]). Petitioner argues that it is well settled that failure to comply with the timely notice requirement results in vacatur of the warrant and dismissal of the parole violation charges (see, People ex rel. Smith v. New York State Bd. of Parole, 131 AD2d 401 [2nd Dept. 1987]; People ex rel. Andersen v. New York State Bd. of Parole; 94 AD2d 807 [2nd Dept. 1983]; Williams v. Hammock, 57 NY2d 936).
Cases listed by petitioner relate to issues concerning whether the preliminary hearing was timely. The parties do not dispute that the preliminary hearing was timely.
Respondents' Position
Simply stated, Respondents's position is that the writ petition must be dismissed because it is moot following the holding of a final revocation hearing (see generally, People ex rel. Falcon v. Warden , 25 AD3d 500 [1st Dept. 2006]). Further, Petitioner's failure to meet bail on his pending criminal charges also bars habeas corpus release (see generally, People ex rel. Kaplan v. Commissioner of Correction, 60 NY2d 648) (see also, People ex rel. VanSteenburg v. Wasser ,69 AD3d 1135 [3rd Dept. 2010]). Finally, full compliance with statutory notice requirements took place (see, entire record).
Legal Discussion
Concerning the branch of Petitioner's argument stating that he was denied his constitutional right to a speedy final hearing, the claim is plainly meritless as a factual matter. While concededly a final hearing must be held within 90 days of a probable cause determination at a preliminary hearing (see, NY Exec. Law § 259-i[f][i]), the final hearing here was timely. The final hearing was held on July 5, 2011, fifty six days after the preliminary hearing held on May 10, 2011 (see generally, Morgan v. Fillion. 2000 US Dist. Lexis 2226, 2000 WL 235986 [SD NY 2000]). Therefore, no federal or state constitutional violation exists (see, Matter of Jackson v. State, 127 AD2d 595 [2nd Dept. 1987]).
The Court now turns to whether the notice of preliminary hearing was timely served and what consequences result from allegedly untimely service. This issue is the sole issue presented in the amended verified petition.
Executive Law § 259-i[c] requires that a parole board must afford a preliminary revocation hearing before a hearing officer within fifteen days after the warrant has been executed. The statute also directs that the alleged violator shall, within three days of a warrant's execution, be given written notice of the time, place and purpose of the hearing. In this case, Petitioner received notice untimely by mail, apparently on or before May 5, 2011, while the last day for service was May 2, 2011 (see, Exhibit D, pp. 7 to 9).
No federal constitutional issue is presented by Petitioner's claim that service of the notice of preliminary hearing was untimely (see generally, Thurman v. Allard, 2004 US Dist Lexis 18904 [SD NY 2004]).
Petitioner focuses upon two discrepancies he says show DOCCS missed the service date: (1) no record exists in the correctional center log book showing that the parole officer came to Petitioner's section at Rikers Island on May 1, 2011; and (2) the "violation papers" are dated May 3, 2011. While Petitioner objected at the preliminary hearing (Exhibit E), he submitted no documentary evidence concerning timeliness and none with his writ submissions. Further, he failed to specify what "violation papers" were dated May 3, and he concedes warrant #618872 was dated April 28, 2011 (Amended Verified Petitioner, p. 3). Parole Officer Michael Dungee testified concerning the circumstance surrounding his failed attempts to serve Petitioner at Rikers Island on Sunday, May 1, 2011 (see, Exhibit D).
The last date for service was Monday, May 2, because the the third day after the warrant was a Sunday (see generally, People ex rel. Frost v. Meloni, 124 AD2d 1032 [4th Dept. 1986]]).
As the Court understands, the remaining branch of Petitioner's petition is limited to the timeliness of the notice, not the timeliness of the hearing. The Court finds no dispute exists that the preliminary hearing was timely held on May 10, 2011 at the Rikers Island Judicial Center (Exhibit E). Likewise, Petitioner's Final Parole Revocation Hearing was timely on July 5, 2011 (see, Exhibit F).
Strict adherence to time limits for holding preliminary hearings and subsequent final revocation hearing is required by statute (see, People ex rel. Johnson v. New York State Board of Parole, 71 AD2d 595 [1st Dept. 1979]).
DOCCS suggests that Petitioner waived objection to timely service by refusing service when his parole officer attempted to serve the notice at Rikers on Sunday, May 1, 2011. Because Petitioner avoided service (see, Exhibit D, p. 5), the parole officer says he mailed the notice on the next day (Monday) in response and received proof of postal service which he brought to the preliminary hearing (see, Exhibit D, pp. 6 and 7). In this regard, DOCCS argues not only was the delay caused by Petitioner's refusal to accept service, but Petitioner specified no particular prejudice at the hearing or in his pleadings concerning the delay (see generally, People ex rel. Washington v. NYS Div. of Parole, 279 AD2d 379 [1st Dept. 2001]).
The Court agrees with Respondents that Petitioner's argument concerning untimely service is unfounded. Failure to comply with the three day rule does not generally affect a petitioner's right to parole restoration (see generally, People ex rel. Williams v. Walsh, 241 AD2d 979 [4th Dept. 1997]). The delay here was clearly caused by Petitioner utilizing the Corrections' system to frustrate service by his parole officer while he was interred at the Rikers Island facility. Petitioner presented no evidence to refute this impression. Further, Petitioner actually received service within a few days of the original date and Petitioner showed no prejudice by the short delay (see generally, People ex rel. Patterson v. Warden, 2006 NY Misc. Lexis 2868 [Sup. Ct. Bronx 2006]). This is underscored by Petitioner being represented by counsel at the preliminary hearing and by his failure to seek a continuance (see, Exhibit D, pp. 3 and 4). Likewise, he presented no due process argument based upon Respondents' inability to adhere to the three day rule that showed impairment to Petitioner's right to defend himself at the preliminary hearing (see, Id.).
Petitioner's claim here is limited to the timeliness of the notice, not the timeliness of the hearing. In People ex rel Williams v. Walsh, supra., the Appellate Division rejected a petitioner's argument that he was not given timely notice of his parole violation preliminary hearing where the notice was served more than three days after the execution of the parole violation warrant. However, in that case, the preliminary hearing was conducted within the required fifteen day period and, therefore, the Court found that petitioner was not prejudiced by the short delay in service of the notice ( see generally, People ex rel. Williams v. Walsh, Id.
Finally, the Court agrees with Respondents that Petitioner's writ request is rendered moot by the final parole revocation determination (see generally, People ex rel. Johnson v. New York State Div. of Parole, 270 AD2d 137 [1st Dept. 2000]).In summary, Respondents's failure to comply with the three-day notice rule of Executive Law § 259-i (3) (c) (iii) does not directly affect Petitioner's parole status. In this regard, it is different from failure to comply with Executive Law § 259-i (3) (c) (i) and (f) (i) which mandate timely hearings ( see generally, People ex rel. Williams v. Walsh, supra.). In the instant case, the Court finds it significant that Petitioner did not request an adjournment of the preliminary hearing because of late notice and he did not contend that he was prejudiced (see, People ex rel. Patterson v. Warden, supra. Under the circumstances, the Court finds that the notice delay does not demand dismissal of the parole violation warrant and does not require Petitioner's restoration to parole.
Conclusion
Based upon the foregoing, Petitioner's relief is denied in all respects.
The Court read the following papers in deciding this matter: (1) Petition for Writ of Habeas Corpus; (2) Amended Verified Petition for Writ of Habeas Corpus; and (3) Affirmation in Opposition to Petition for Writ of Habeas Corpus with attachments.
WHEREFORE, it is hereby
ORDERED those branches of the Petition applying for a Writ of Habeas Corpus upon the basis that there was an untimely final parole revocation hearing is DENIED; and it is
ORDERED that the branch of the Petition applying for a Writ of Habeas Corpus upon the basis that Petitioner received insufficient notice of his preliminary parole revocation hearing is DENIED; and it is
ORDERED that the branch of the Petition applying for a Writ of Habeas Corpus for the purpose of inquiring into the legality of Petitioner's detention is DENIED. and it is
ORDERED that the branch of the Petition applying for a Writ of Habeas Corpus for the purpose of canceling the parole delinquency against him is DENIED. and it is
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 Petitioner's release in this matter 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.