Opinion
No. 340132–2016.
05-27-2016
The PEOPLE of the STATE OF NEW YORK ex rel. Willie BROWN, v. WARDEN, RIKERS ISLAND CORRECTIONAL CENTER & New York State Correctional Department & Community Supervision, Respondents.
Eric M. Sokol, Esq., Bronx, NY, for Petitioner. David T. Cheng, Assistant Attorney General, Office of the Attorney General of the State of NY, for Respondents.
Eric M. Sokol, Esq., Bronx, NY, for Petitioner.
David T. Cheng, Assistant Attorney General, Office of the Attorney General of the State of NY, for Respondents.
APRIL A. NEWBAUER, J.
Relator Willie Brown (“Brown”) petitions for a writ of habeas corpus to vacate the parole violation warrant against him, claiming that he was not provided with the opportunity of a timely preliminary hearing, that he did not waive his due process rights to a preliminary hearing within fifteen days after the warrant was executed and that the waiver form was altered after he signed the form. Brown asserts he was denied his right to a timely preliminary revocation hearing in violation of the Due Process Clause of the Fourteenth Amendment, the New York State Constitution and the New York Executive Law § 259 –1(3)(c)(i) and (iv). The respondents contend that DOCCS complied with the statutory requirements governing notice and time of petitioner's preliminary hearing and the charges against him. For the reasons stated below, the writ of habeas corpus is granted, the parole warrant is dismissed and Brown's request to be restored to parole status is granted.
The Court reviewed the following papers: Pro Se Writ of Habeas Corpus; Petition for a Writ of Habeas Corpus and Affirmation in Support of Writ with attached miscellaneous documents; Verified Amended Petition for a Judgement pursuant to Article 78 of the CPLR by Eric Sokol, Esq.; Affirmation in Opposition to Petition for a Verified Writ of Habeas Corpus and Exhibits A–H; Verified Reply filed by Eric Sokol, Esq.
Facts
On March 21, 2012, petitioner Brown was convicted in Kings County Supreme Court of Attempted Robbery in the Second Degree and received a determinate sentence of three years' incarceration and five years' post release supervision. On November 3, 2014, Brown was released to parole supervision. Brown agreed to adhere to certain conditions that the Department of Corrections and Community Supervision (“DOCCS”) imposed upon his release with the understanding that his failure to abide by these conditions would result in revocation of his parole. Brown would have reached the maximum expiration date of his sentence on November 3, 2019.
On November 18, 2015, Brown was declared delinquent and charged with violating four conditions of his release to parole supervision. On January 7, 2015, a parole violation warrant # 704801 was issued and was lodged on the same day. On January 7, 2016, Brown was served a copy of the Violation of Release Report and notice of the violation. Brown claims that he timely requested a preliminary hearing at the time he was placed in custody at the parole office on January 7, 2015. Brown maintains he has been denied a hearing by the actions of a parole officer who altered the form 9011 without Brown's knowledge or permission. Brown alleges that he merely signed the form and checked the box indicated he wished to have a preliminary hearing. The Court reviewed the Notice of Violation form attached to Brown's papers. The box labeled, “I DO wish to have a preliminary hearing” is checked and the initials “WB” and date of “1/7/16” appears under this box. Respondents claim that discrepancies on the form can be explained, that Brown did elect to waive his right to a preliminary hearing and therefore the final parole revocation hearing was scheduled for January 19, 2016. On January 14, 2016, DOCCS adjourned the final hearing until February 5, 2016 because Brown had not yet been administratively declared delinquent. On February 5, 2016, the hearing was adjourned by DOCCS for notice. Thereafter, on several subsequent dates, the final hearing was adjourned by Brown's attorney.
Brown also has a pending criminal case in Kings County in which he posted bond on December 2, 2015. The Court is not aware of the disposition of this matter to date.
In the affirmation in opposition, the respondent's attorney indicated that Brown was still incarcerated as he had not yet posted bond or case in the amount of $7500. However, Brown's attorney in a verified reply affirmation states that Brown posted bail on December 2, 2015 and provided documentation to support his position from the New York State Unified Court System website.
FINDINGS
Petitioner claims the preliminary revocation hearing itself was untimely in violation of the Due Process Clause of the Fourteenth Amendment, the New York State Constitution and the New York Executive Law § 259 –1(3)(c)(I) and (iv). Executive Law section 259–i(3)(c)(iv) directs a preliminary hearing to be scheduled “no later than fifteen days from the date of the execution of the warrant.” The statute does not require that the preliminary hearing be completed within the fifteen-day period, “but only that the hearing be scheduled to take place' within that period of time.” Matter of Emmick v. Enders, 107 A.D.2d 1066, 1067, appeal dismissed 65 N.Y.2d 1050 (1985). There is no violation of the fifteen-day limit when the hearing was timely scheduled but thereafter adjourned for a legitimate reason without prejudice to the petitioner. Id.; People ex rel. Burley v. Warden, Rikers Island, 70 A.D.2d 518, lv. denied 48 N.Y.2d 602 (1979) ; People ex rel. Morant v. Warden, Rikers Island, 35 AD3d 208 (2006), lv. denied 8 NY3d 809 (2007).
The Court recognizes that the right to a preliminary hearing may be waived provided that the waiver is knowingly, voluntarily and intelligently made. See People ex rel Quinones v. NYS Bd. Of Parole, 66 N.Y.2d 748 (1985) ; People ex rel. Miller v. Walters, 60 N.Y.2d 920, 922 (1983) ; People ex rel. Benton v. Farsi, 1 AD3d 126 (1st Dept.2003) ; People ex rel. Walter v. Sullivan, 128 A.D.2d 572 (2nd Dept.1987). A waiver of a preliminary hearing can be made in writing or orally on the record at the preliminary hearing. 9 NYCRR section 8005.6(b). However, a parolee who waives his right to a preliminary hearing, cannot thereafter challenge the failure to be granted a hearing. See People ex rel. Walker v. Sullivan, 128 A.D.2d 572 (2nd Dept.1987).
There were no facts presented to this Court that Brown waived his rights orally.
In this case, the parole warrant was issued on January 7, 2016 and lodged with NYC Department of Corrections. The fifteen-day period to conduct the preliminary hearing ended on January 22, 2016. The parties agree that at no time did Brown receive a preliminary hearing. DOCCS bears the burden of establishing a prima facie case that under the totality of the circumstances Brown made a knowing, voluntary and intelligent waiver. See People ex rel. Melendez v. Warden, 214 A.D.2d 301 (1st Dept.1995). A waiver is knowing and intelligent when made after the rights concerning the hearing and the effect of the waiver are explained to the parolee so that he or she is aware of the consequences of waiving the preliminary hearing. See People ex rel. Melendez v. Warden, 214 A.D.2d at 302 ; see also People ex rel. Moll v. Rodriguez, 132 A.D.2d 766, 767–768 (3rd Dept.1987). A writing clearly and unambiguously documenting the individual's intention to relinquish his or her right to a preliminary hearing is sufficient to establish a waiver. See People ex rel. Melendez v. Warden, 214 A.D.2d at 302. The burden then shifts to the parolee to demonstrate that the waiver was defective because it was uninformed, unintelligent and/or involuntary. Id.
Here, there is a factual dispute as to whether there was a written waiver by Brown. The Notice of Violation form served on January 7, 2016 has a check mark in the box stating, “I DO wish to have a preliminary hearing” and then an X through the checked box with what purports to be the petitioner's initials and the date. Additionally, there is also an X in the box, “I do NOT wish to have a preliminary hearing” which purports to have the petitioner's signature underneath. There are several other notations purporting to be from a parole officer Jenkins who indicated that he witnessed a waiver underneath and the word “WAIVED WB” written on the form. The Court also notes that there is a handwritten date inserted onto the form for a preliminary hearing scheduled for either January 12, 2016 or January 19, 2016 at 9:30 a.m. at RIJC with the word Waived written across the date and initials WB and JW on the top portion of the form. Both boxes on the form were checked, and although there appears to be a cross over the hearing request, and there is no indication of the circumstances in which these entries were made, by whom, and if they were later altered.
The petitioner attached an affidavit swearing that when he was informed by his Parole Officer, Williams, that he was being violated, Williams handed him a form and he elected to have a preliminary hearing. The parole officer removed the paper from his possession and he was escorted to Brooklyn House of Detention.
Before being transferred into DOCCS custody, another Parole Officer, Jenkins, served Brown his violation papers, including the Notice of Violation form that he signed earlier requesting a preliminary hearing. Brown attests that he noticed that the form had been altered in that the date of the hearing had the word “Waived” written over it and the box indicating that I do not wish to have a hearing' was checked. In addition, Brown states he observed initials added to the changes which were not his handwriting, and that a legend had been added indicating that Parole Officer Jenkins witnessed a waiver. Brown states that he objected; that he never authorized the changes; and that he did want a preliminary hearing.
In the face of these sworn assertions, DOCCS failed to provide either an affidavit from Parole Officer Williams to explain the entries or an affidavit from Parole Officer Jenkins to attest to the facts or to explain the checks in both boxes. DOCCS counsel suggests that Parole Officer Williams had Brown include his initials at various points on the Notice of Violation form along with Parole Officer Williams's own. See Paragraph 17 in Affirmation in Opposition to Petition for a Verified Writ of Habeas Corpus. However, Respondents did not explain the contradictory entries and unexplained edits on the notice form. DOCCS' bare and unsupported arguments made by counsel on information and belief are not sufficient in the face of the strong presumption against the waiver of constitutionally guaranteed due process entitlement to sustain respondent's claim of waiver. See People ex rel. Melendez v. Warden, 214 A.D.2d at 302–303 ; see also People ex rel. Moore v. NYS Div. Of Parole, 2002 WL 1969264 (Sup.Ct. Kings Co. August 22, 2022).
Absent a clear and unambiguous waiver, Brown's right to a preliminary hearing remains undisturbed. Therefore, Brown's due process rights were violated by the denial of a preliminary hearing within fifteen days of the issuance of a parole warrant as required by New York Executive Law § 259–i. Contrary to Respondent's assertion that the remedy for an ineffective waiver should be a new preliminary hearing, the appropriate remedy for this violation is a vacatur of the parole warrant and restoration of Brown to parole status. See People ex rel. Melendez v. Warden, 214 A.D.2d 301 (1st Dept.1995) ; People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, 828 (2nd Dept.2978). Brown's petition for relief from a parole warrant for denial of a preliminary hearing is granted.
The Court grants Brown's application to convert the writ of habeas corpus to an Article 78 pursuant to CPLR section 103(c) as the defendant does have a pending criminal matter. Accordingly, for the foregoing reasons, the parole warrant # 704801 is dismissed and Brown's request to be restored to parole status is granted unless Brown is presently incarcerated on the basis of another warrant or commitment not predicated on the violation of parole.This Decision shall constitute the Order of this Court.
CPLR Section 103(c) gives the court discretion to convert the form of an action from a writ of habeas corpus to an Article 78 petition where the court has jurisdiction over the parties.