Opinion
No. 251503–13.
10-21-2014
The PEOPLE of the State of New York ex rel Christopher BROWN, Petitioner, v. WARDEN, Otis Bantum Correctional Center and New York State Department of Corrections and Community Supervision, Respondents.
Izel Fortunato, Esq., Kerry Elgarten, Esq., Attorney for Petitioner. Anna Hehenberger, Esq. Assistant Attorney General, N.Y. State.
Izel Fortunato, Esq., Kerry Elgarten, Esq., Attorney for Petitioner.
Anna Hehenberger, Esq. Assistant Attorney General, N.Y. State.
Opinion
MIRIAM R. BEST, J.
In a decision and order dated January 23, 2014, this Court ordered a hearing on Petitioner Christopher Brown's claim that his waiver of a preliminary hearing was invalid because he was unaware of all of the charges in the Violation of Release Report and the Supplementary Violation of Release Reports when he entered the waiver. This Court conducted a hearing on June 30, 2014, and August 28, 2014, to determine which charges had been served on Petitioner when he entered the waiver. For the reasons that follow, this proceeding is dismissed.
Although Brown initially sought a writ of habeas corpus, he is still being held on charges contained in Kings County Indictment No. 08706–2013. Thus, the writ was converted pursuant to CPLR § 103(c) to an Article 78 proceeding.
This Court has reviewed the Verified Petition for a writ of habeas corpus and attached exhibits; the Affirmation in Opposition to the Petition for a writ of habeas corpus and attached exhibits; the Affirmation in Reply to Opposition to writ of habeas corpus; the Post–Hearing Affirmation in Support of Petition; the Affirmation in Response to Petitioner's Post–Hearing Affirmation; the exhibits and testimony from the hearing; and the transcript of the proceedings on Riker's Island on October 18, 2013. Based on the foregoing, I make the following findings of fact relevant to the issue raised by Petitioner.
Findings of Fact
Petitioner was declared delinquent as of August 15, 2013, and parole warrant # 673896 was subsequently issued. The original Violation of Release Report (DOCCS Exh B) listed two charges, alleging that Petitioner failed to make his office report on August 15, 2013, and failed to notify his parole officer that he had changed his address. On August 30, 2013, a Supplementary Violation of Release Report was prepared, alleging 11 additional violations of Petitioner's conditions of release. For the most part, these charges related to Petitioner's alleged contact with and conduct towards Tatiana Talley on August 11 and 12, 2013 (DOCCS Exh F). On October 4, 2013, Petitioner was arrested and subsequently indicted for Criminal Contempt in the First Degree and other related charges (see fn. 1, supra ). The parties agree that parole warrant # 673896 was lodged on October 4, 2013. The parties also agree that on October 7, 2013, Petitioner was served with the Notice of Violation and waived his right to a preliminary hearing.
A second Supplementary Violation of Release Report was prepared on October 10, 2013. It alleged that on October 4, 2013, at approximately 6:00 PM, in front of 309 MacDougal Street, Brooklyn, New York, Petitioner violated an order of protection (Charge 14) and that on October 4, 2013, and immediately thereafter Petitioner failed to notify his parole officer of his arrest (Charge 15) (DOCCS Exh H).
Parole Officer Angie Ramirez was assigned to supervise Petitioner on May 21, 2013 (H 28). She met with him seven times, during office and home visits as well as on Riker's Island (id. ). On July 18, 2013, Petitioner reported to Ramirez in her office and was instructed to report again (id. ). Thereafter, Petitioner was declared delinquent, meaning that he had violated one or more of the conditions of his release when he stopped reporting as directed (H 30). Ramirez prepared a Violation of Release report on August 26, 2013, containing Charges 1 and 2 (H 31). Ramirez also prepared a Supplementary Violation of Release Report on August 30, 2013, containing Charges 3 through 13 (H 33, 38; Respondent's Exhibit 2). Ramirez testified that she served Petitioner with Charges 1 through 13 at Otis Bantum Correctional Center (“OBCC”) at Riker's Island on October 7, 2013 (H 37). In her experience as a parole officer, she always served a parolee with all of the charges she had prepared as of the date she served the parolee, and there had never been a time when she did not serve a parolee with all of the charges she had written up (H 38). Although she had no reason to believe that she had failed to serve Petitioner with all of the charges prepared as of the date she served him, Ramirez did not recall how many pages she served on Petitioner and did not have him initial any of the pages of the Violation of Release Report (H 39, 45). Moreover, although Petitioner signed the 9011 Form waiving his right to a preliminary hearing, that form did not indicate the number or nature of the charges (H 45, 46).
Parenthetical references preceded by an “H” refer to the minutes of the hearing conducted by this Court.
Ramirez met Petitioner at the OBCC on October 7, 2013, where she gave him six or seven pages folded neatly in an envelope (H 115–16). There were only five charges in this paperwork, two charges on one page and three charges on another page (H 117–118). Petitioner decided to waive his preliminary hearing, believing that the Division could go forward on every charge at a preliminary hearing but that it would only proceed on a single charge at a final hearing (H 117). When Petitioner met his attorney, Claudia Romano, an attorney with the Parole Revocation Defense Unit of the Legal Aid Society, on October 18, 2013, he was surprised when she told him that there were fourteen or fifteen charges, because he thought he had only five charges (H 122). Petitioner pulled out the envelope containing the papers given to him by Ramirez and showed them to Romano (H 122). Petitioner conceded that his decision to waive the preliminary hearing “probably” would not have been different if he had been served with “more charges” (H 126).
On October 18, 2013, Romano represented Petitioner at an arraignment shift at the Riker's Island Judicial Center (H 49, 50, 51). According to her:
When I went to meet with him [that day], I called him out and I indicated that he had fifteen charges against him and he looked at me like I was—he said, you mean five? And I said no. Fifteen. And he had no—he appeared to have no clue what I was talking about. So I said okay, calm down. Let's see, you know, what the situation is.
Q. Did you ask Mr. Brown for his papers?
A. I did.
Q. Did he have them with him?
A. He did.
Q. Do you recall the condition that the documents were in?
A. Yes, I actually do. They were folded and they were stapled and he—I know what papers he had and/or what he provided to me, what he had with him that day.
Q. Could you describe what papers he had with him that day?
A. Yes, he had his 9011, which is a notice of violation. He also had a page that had charges one and two. He had another piece of paper that had charges three, four and five. He had a certificate of release and he had also special conditions, and I believe he had also had a page that might have been like a criminal record.
(H 51–52.) Romano examined Petitioner's papers in an effort to determine if they had been manipulated and concluded that “it did not appear that they had been manipulated in any way” (H 53), although she conceded that papers can always be missing (H 61). Romano also remembered Petitioner specifically, because she filed the instant writ on his behalf and she does not file many writs (H 59).
Parole Revocation Specialist Elaine Kallinikos appeared as the arraignment specialist for DOCCS before Administrative Law Judge (ALJ) Maccario (Petitioner's Exh A, Mins of 10/18/13). ALJ Maccario noted that Petitioner had his papers “[e]xcept for the charges that the Division notes that they will be serving the supplemental charges” (id. at p 2).
THE COURT: Although they were already contained in the Violation Report, we have up to a charge fifteen rule six but the Division notes that they will be serving those charges formally on Releasee, correct?
MISS ELAINE KALLINIKOS: Yes.
THE COURT: All right.
MISS ELAINE KALLINIKOS: Okay, I will do that now. I'm serving upon Mr. Brown a supplemental Violation Report with the original VOP that received with charges six through fifteen dated 9/13/13.
(Id. at 2–3.) Kallinikos served Petitioner with the “complete package,” “all his parole papers” (H 88). She was not present when Petitioner was initially served with his parole papers by his parole officer (H 89). Kallinikos conceded at the hearing that she served Petitioner with Charges 6 through 15 because Romano told her during the conference on October 18, 2013, that Petitioner had only been served with Charges 1 through 5 (H 101).
According to Gayle Walthall, the Regional Director of the New York State Department of Corrections and Community Supervision, “[t]he violation of release report is the report that must be prepared so that the warrant can be issued. Those are the charges which form the basis for the warrant” (H 13). Thus for example, if a parolee failed to report and absconded, a violation of release report would be prepared and a warrant would be issued. If that same parolee were subsequently arrested on a new charge, NYSDOCCS would address those charges in a supplemental violation report (id. ). According to Walthall, a parolee is not entitled to a preliminary hearing on supplemental charges, because
[t]he original preliminary hearing is basically testing the warrant. So the only time an individual can have a preliminary hearing is based upon the charges for which the warrant was issued. The supplemental charges can be used as a final—at the final hearing, but you're not going to get a new preliminary hearing because there is new behavior. Preliminary hearing is saying yes, we're holding you and we have reason to hold you. The state only needs one reason to hold you until there's a final revocation hearing. At the final revocation hearing, all charges must be discussed or must be addressed one way or the other.
(H 17.) She also testified as follows:
Q. If the parolee is served with two reports, a violation of release report and then a supplemental violation of release report, given that there are two sets of violations of release reports, what charges can parole proceed with as a matter of its policy and procedure at the preliminary hearing in order to establish probable cause.
A. We don't call them the same. There could never be two violations of release reports. There could be one violation of release report and numerous supplemental violations of release reports. The individual can only go on at a preliminary hearing on the charge which forms the basis for the issuance of the warrant and those charges would be contained in the violation of release report as opposed to supplemental violation of release report. They can not go forward with charges in the supplementals because those were issued post-warrant. We're testing, so to speak, testing the warrant.
Kallinikos testified that Petitioner could not have had a preliminary hearing with respect to Charges 14 and 15 because “the warrant wasn't the basis of charges 14 and 15. Those were additional charges, I believe, of how he came back into custody” (H 106). However, she believed that the Division could have gone forward on the charges in the Supplemental Violation of Release Report “because then we're serving them on him so he's familiar with those charges upon which he's waiving his preliminary hearing. That's where the supplement comes in” (H 108). In their Affirmation in Response to Petitioner's Post–Hearing Affirmation (p 5), Respondents argue that Petitioner's “waiver could only encompass the charges upon which the parole warrant was based, which were the first two charges.”
In People ex rel Watson v. Commissioner, New York City Department of Correction, and New York State Division of Parole, 149 A.D.2d 120 (1st Dept 1989), the First Department held that a finding of probable cause as to a violation of a condition of parole that occurred after Watson was seized by parole officers and placed in leg shackles did not
relieve the respondent Division of Parole of the burden to demonstrate a basis for the issuance of the warrant in the first instance pursuant to subdivision (3)(a)(i) [of Executive law 259–I ]. 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. at 123. See also, People ex rel Hall v. Warden, George Motchan Detention Center, New York State Division of Parole, 32 Misc.3d 1246(A). Watson plainly supports Kallinikos's testimony that the Division could not have gone forward on Charges 14 and 15 at a preliminary hearing because those charges arose after Petitioner was taken into custody on a new arrest by the New York City Police Department and the parole warrant was lodged. It is unclear whether Watson should be interpreted so broadly as to prevent the Division from going forward on charges that were added in the form of a Supplementary Violation of Release Report generated in advance of Petitioner's return to custody simply because a second warrant was not issued at the same time. However, having concluded that Petitioner's waiver of a preliminary hearing establishes the validity of the parole warrant, the Court need not address this claim further.
The Parties' Contentions
Petitioner claims that at the time he waived his right to a preliminary hearing he had only been served with Charges 1 through 5. Thus, he argues that because he was not accurately informed of the charges he was facing, his waiver of a preliminary hearing was not valid and he was improperly denied his right to a preliminary hearing (Reply Aff p 2). Petitioner does not contest Respondent's authority to bring supplemental charges and concedes that “[i]f petitioner had had a preliminary hearing and had probable cause then been found justifying his detention, respondent could then properly add supplemental charges prior to the final hearing” (Reply Br p 3). Had Petitioner had a preliminary hearing, there would be no waiver to analyze and Respondent could properly supplement charges prior to the final hearing (id. ). Yet Petitioner argues that because he did not have notice of all of the charges against him when he waived his right to a preliminary hearing, it “invalidate[d] the waiver by rendering it one that was not knowing and intelligent” (id. ). As a result, Petitioner requests that he be released and restored to parole. Alternatively, Petitioner requests that Charges 6 through 15 be dismissed for lack of notice (Writ p 5).
Respondent argues that after Petitioner waived his right to a preliminary hearing, he was not entitled to a new Notice of Violation or another chance at a preliminary hearing just because he was served with supplementary charges, because “[u]pon a finding of probable cause by any method, Respondent is entitled to bring supplemental charges at any time prior to the completion of the Final Hearing” (emphasis in original, citation omitted) (Resp Br p 7).
Analysis
An analysis of these arguments must begin with the applicable provisions of both the Executive Law and the New York City Rules and Regulations. 9 NYCRR 8004.3(c) provides that
A warrant for the retaking and temporary detention [of a releasee] may issue when there is reasonable cause to believe that the releasee has lapsed into criminal ways or company, or has violated the conditions of his release in an important respect. Reasonable cause exists when evidence or information which appears reliable discloses facts or circumstances that would convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that a releasee has committed the acts in question or has lapsed into criminal ways or company. Such apparently reliable evidence may include hearsay.
(See also, Executive Law 259–i[3][a][i].) Here, parole warrant # 673896 was issued only on the basis of the two charges in the Violation of Release Report, alleging that Petitioner failed to make his office report on August 15, 2013, and failed to notify his parole officer that he had changed his address.
Executive Law § 259–i(3)(c)(iii) provides that
The alleged violator shall, within three days of the execution of the warrant be given written notice of the time, place and purpose of the hearing.... The notice shall state what conditions of presumptive release, parole, conditional release or post-release supervision are alleged to have been violated, and in what manner; that such person shall have the right to appear and speak on his or her own behalf; that he or she shall have the right to introduce letters and documents; that he or she may present witnesses who can give relevant information to the hearing officer; that he or she has the right to confront the witnesses against him or her. Adverse witnesses may be compelled to attend the preliminary hearing unless the prisoner has been convicted of a new crime while on supervision or unless the hearing officer finds good cause for their non-attendance. As far as practical or feasible, any additional documents having been collected or prepared that support the charge shall be delivered to the alleged violator.Here, the warrant was executed on October 4, 2013. Accordingly, Respondent had three days from October 4, 2013, to provide Petitioner with written notice stating what conditions of his release had been violated. Petitioner concedes that on October 7, 2013, he was served with Charges 1 though 5.
Executive Law § 259–i(3)(c)(i) provides that
Within fifteen days after the warrant for retaking and temporary detention has been executed, ... the board of parole shall afford the alleged presumptive release, parole, conditional release or post-release supervision violator a preliminary revocation hearing before a hearing officer designated by the board of parole. Defendant did not have a preliminary hearing based on his waiver on October 7, 2013. Pursuant to 9 NYCRR 8005.6(b), “[t]he waiver of a preliminary hearing may be made either in writing on forms provided, or orally on the record at the preliminary hearing.” It is well established that
The waiver of a preliminary hearing must be made knowingly, intelligently, and voluntarily (citations omitted). Consideration of the totality of the circumstances surrounding the waiver must be considered to determine its validity (citations omitted). A parolee who, through a Notice of Violation form or other waiver instrument, unambiguously manifested his or her intention to waive the preliminary hearing to which he or she is otherwise constitutionally entitled has the burden to prove that the waiver was nonetheless defective. (Citations omitted). However, a waiver will not be presumed since it must initially be established that a waiver was in fact made. (Citations omitted). A valid waiver may be established through a writing that clearly and unambiguously establishes the individual's intention to relinquish his or her right. (Citations omitted).
People ex rel Moore v. New York State Division of Parole Superintendent et al, 2002 N.Y. Slip Op 50333(U), *1, 2002 WL 1969264 (Sup Ct, Kings County 2002) (Lewis, J.). Here, Respondent's Exhibit G is a Notice of Violation Form, signed by Petitioner on October 7, 2013, with a box marked “I do not wish to have a preliminary hearing” marked. Generally, this form is sufficient, in the first instance, to establish that the waiver was in fact made. People ex rel Melendez v. Warden, Rikers Island Correctional Facility, et al., 214 A.D.2d 301, 302 (1st Dept 1995). Petitioner concedes that he knowingly, voluntarily and intelligently waived his right to a preliminary hearing with respect to Charges 1 through 5. His challenge to the validity of his waiver rests entirely on his claim that he did not have notice of Charges 6 through 15. As a preliminary matter, this Court finds, as a fact, that Petitioner was not served with charges 6 through 15 by Ramirez. Accordingly, the issue presented here is whether Respondent's failure to provide Petitioner with notice of Charges 6 through 15 rendered his waiver of a preliminary hearing invalid.
Case law makes clear that a waiver of a preliminary hearing may be valid as to the charges of which Petitioner had knowledge but invalid as to the charges of which he was uninformed. See People ex rel Frazier, 42 Misc.3d 936 (Sup Ct, Bronx County 2013) (dismissing Frazier's petition to dismiss charges in Violation of Release Report because he had notice of those charges and executed knowing, intelligent and voluntary waiver of preliminary hearing as to those charges; however, sustaining petition as to charges contained in Supplemental Violation of Release Report of which Petitioner had no notice at the time of his waiver); People ex rel Crowley v. New York State Department of Corrections and Community Supervision, Index Number 340133–13, June 24, 2013, Villegas, J. (because Crowley was properly served with first 10 violations and validly waived preliminary hearing as to those, court declined to dismiss parole warrant and restore Crowley to parole; but court dismissed amended and/or additional charges of which Crowley had no notice when he executed the waiver); People ex rel Rivers v. Warden, George Motchan Detention Center, New York State Division of Parole, Index Number 250024–13, April 16, 2013, Alvarado J. (waiver of preliminary hearing was knowing, intelligent and voluntary with respect to charges of which Petitioner had notice, but charges in first and second Violation of Release Reports were so “materially different” that Petitioner did not have informative or timely notice of those charges, rendering waiver of preliminary hearing invalid as to added charges). It is undisputed that defendant had notice of Charges 1 through 5 and further that he knowingly, voluntarily and intelligently waived his right to a preliminary hearing with respect to those charges. Accordingly, the Article 78 proceeding with respect to Charges 1 through 5 is dismissed.
However, with respect to the question of whether Respondent's failure to provide Petitioner with notice of Charges 6 through 15 mandates dismissal of those charges, this Court respectfully declines to follow Frazier, Crowley and Rivers, supra. It is well established, as Petitioner concedes, that DOCCS may properly add or supplement charges after a preliminary hearing but before a final revocation hearing. People ex rel Kinzer v. Melvin Williams, as Superintendent of Gowanda Correctional Facility, et al., 256 A.D.2d 1240, 1240 (4th Dept 1998) (relator “was not deprived of his due process rights when, at the final parole revocation hearing, the Hearing Officer heard proof and revoked relator's parole based on two charges that did not result initially in a declaration of delinquency and were not the basis for the finding of probable cause at the preliminary parole revocation hearing.”); see also, In the Matter of Keith Polidan v. Brion Travis, as Chair of the New York State Board of Parole, 8 AD3d 770, 770–71 (3d Dept 2004) (“[a] preliminary hearing is designed to determine if there is probable cause that a parole violation occurred, and the failure of an ALJ to address one of the charges does not preclude it from being raised at the final revocation hearing, particularly given that petitioner had notice that all charges could be raised at the final hearing [citations omitted]”). As the United States District Court for the Southern District of New York observed in Suce v. Justin A. Taylor, New York State Division of Parole et al., 572 FSupp2d 325, 337–38, fn. 6 (SDNY 2008) :
The Court finds no instances of case law noting that the addition of a supplemental Violation of Release Report would constitute a violation of due process, but rather finds many precedents in which violations in similar supplemental reports were filed without issue. See, e.g., Drayton v. Travis, 5 AD3d 891, 772 N.Y.S.2d 886 (App. Div.3d Dep't 2004) (allowing supplementary violation report prepared after petitioner had waived his preliminary hearing but before final parole revocation hearing); People ex rel. Burt v. Warden, 18 Misc.3d 869, 854 N.Y.S.2d 861, 863 (N.Y.Sup.Ct.2008) (allowing supplementary violation of release report prepared after issuance of parole warrant but prior to arrest and preliminary hearing).As Respondent correctly argues, both a knowing, voluntary and intelligent waiver of a preliminary hearing and a finding of probable cause at a preliminary hearing establish the validity of a parole warrant to detain a parolee. When “the petitioner waives his ... right to a preliminary hearing, such waiver is equivalent to a probable cause determination for purposes of Executive Law § 259–i(3)(f)(i) (citations omitted),” People ex rel Gray v. James L. Campbell, et al, 241 A.D.2d 723, 724 (3d Dept 1997) ; see also People ex rel Crooks, 194 A.D.2d 376 (1st Dept 1993) (90 day requirement for final revocation hearings calculated from the date of the probable cause determination, “here, the waiver of the preliminary hearing”). Moreover, Executive Law § 259–i(3)(d) specifically provides that a finding of probable cause is made “either by determination at a preliminary hearing or by the waiver thereof.”
Accordingly, DOCCS could properly add to or supplement the charges of which Petitioner had notice at the time of his knowing, intelligent and voluntary waiver of a preliminary hearing so long as DOCCS also gave him the requisite fourteen days' notice required by Executive Law § 259–i(3)(f)(iii) within the applicable 90 day period for the final revocation hearing. See People ex rel Young v. Warden, Otis Bantum Correctional Center and NYS Department of Corrections and Community Supervision, Index No. 250642–14 (Sup Ct, Bronx County September 26, 2014) (Kindler, J.) (filing of Supplemental Violation of Release Report more than fourteen days before final hearing did not render prior waiver of preliminary hearing invalid); In the Matter of the Application of Barry Frain v. Yelich, et al., 2012 WL 6738656, 2012 N.Y. Slip Op 33051(U) *9 (Sup Ct, Franklin County 2012) (Feldstein, J.) (rejecting Frain's claim that because he had not been served with the second Supplementary Violation of Parole Report on the day that he waived his right to a preliminary hearing, his waiver did not encompass the charge contained in the second Supplementary Violation of Parole Report; when Frain was served by mail with second Supplementary Violation of Parole Report “he was not entitled to a preliminary hearing with respect to such charge since he had already waived his right to a preliminary hearing after being duly served with Parole Violation charges # 1 through # 5,” and was entitled only to fourteen days' notice of the supplementary charge prior to the scheduled date of his final revocation hearing in accordance with Executive Law § 259–i[3][f][iii] ) ; see also, People ex rel Lewis v. Warden, George Motchen Detention Center, New York State Department of Corrections and Community Supervision, Index No. 250534–2014 (Sup Ct, Bronx County August 8, 2014) (Villegas, J.) (relying on both the language in Petitioner's signed waiver as well as case law, court concluded that Lewis's waiver of a preliminary hearing had the same effect as a probable cause finding at a preliminary hearing; holding that Petitioner's waiver extended to the supplemental charge because “[o]nce there is a finding of probable cause, additional charges may be included and addressed at the final hearing”).
Both Justice Kindler in Young and Justice Feldstein in Frain respectfully declined to follow opinions filed by other trial courts, such as People ex rel Davis v. Warden, 31 Misc.3d 1230(A) (Sup Ct, Bronx County 2011), which reached different results. A copy of People ex rel Young, which Respondents submitted after filing their Post–Hearing Affirmation, is attached as Exhibit 1.
This Court finds additional support for its conclusion in People ex rel Howser v. New York State Board of Parole, et al., 57 N.Y.2d 769 (1982). There, the Court of Appeals reversed the Appellate Division's order granting a writ of habeas corpus and instead remanded for a hearing. After a parole warrant was executed, Howser was provided with a notice of violation containing two charges and waived his right to a preliminary hearing. At his final revocation hearing, held on the 70th day following his waiver, Howser denied receiving notice of the date of the adjourned final hearing. Nor had he received a Violation of Release Report or a Supplemental Violation of Release Report which added a third charge. The hearing officer elicited a waiver of Petitioner's right to fourteen days' notice, as well as his right to service of the third charge and his right to counsel, but the Appellate Division vacated the parole revocation warrant and reinstated Howser to parole, holding that the record indicated that there was no clear, knowing, informed waiver by Howser of his right to adequate notice. People ex rel Howser v. New York State Division of Parole, et al., 86 A.D.2d 831, 832 (1st Dept 1982). The Court of Appeals reversed and remitted to Supreme Court for a hearing in accordance with the dissenting opinion of Justice Bloom, who reasoned that “[h]ad relator insisted on any or all of these rights, there was still sufficient time to effect full compliance within the ninety day period during which the final revocation hearing was required to be held.” 86 A.D.2d at 832. Thus, the Court of Appeals decision in Howser, supra, supports the conclusion that after waiver of a preliminary hearing, the Petitioner is only entitled to fourteen days' notice of additional or supplementary charges prior to the final hearing, not a new preliminary hearing on supplemental charges or restoration to parole.
Accordingly, Petitioner's waiver of his right to a preliminary hearing was the equivalent of a probable cause determination after a hearing. It was knowing, intelligent and voluntary as to the five charges of which he had notice, and was not rendered invalid because he was served with additional charges at the arraignment on October 18, 2013. There was no due process violation, and Respondent was properly charged with fourteen days of delay for notice. Because the final hearing has not yet been held, Petitioner has received ample notice of all of the charges filed to date.
For all of these reasons, Petitioner's Article 78 proceeding is dismissed in its entirety.
This constitutes the decision and order of this Court.