Opinion
498-2005.
Decided January 23, 2006.
James McCann, Esq. Elliot Spitzer, Esq. Attorney for Petitioner New York State Attorney General Gary M. Levine, Esq., of Counsel Attorney for Respondent.
The relator Harold Johnson has filed a petition for a writ of habeas corpus alleging that he is being unlawfully detained in the Livingston County Correctional Facility. By writ dated December 2, 2005 (Hon. Ronald A. Cicoria, J.), the petition was made returnable on January 9, 2006 at which time oral argument was presented by counsel and the court heard the comments of Mr. Johnson. The court has also reviewed the petition and its attachments, together with Mr. Johnson's Memorandum of Law filed on April 21, 2005 and a Memorandum of Law submitted by counsel for Mr. Johnson at oral argument, as well as the respondent's return to the relator's writ and the exhibits attached to the return, including the transcript of the relator's final parole hearing, the finding of the Administrative Law Judge who conducted that hearing and the findings of the Board of Parole's Administrative Appeals Unit.
For the reason which follow, the petition for a writ of habeas corpus is converted into a proceeding under Article 78 of the Civil Practice Law and Rules ("CPLR") and the petition is denied and dismissed.
FACTUAL BACKGROUND
On March 18, 1999, Mr. Johnson was convicted, upon his plea of guilty, of three counts of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39) and sentenced to concurrent indeterminate terms of imprisonment of 4½ to 9 years.
On August 5, 2003 the relator was released to parole supervision, at which time certain conditions were imposed upon him, one of which was a special condition (No. 3 to respondent's exhibit "D"). That condition required the relator to "enter, attend, cooperate, participate, progress and complete" the Mid-Erie Sex Offender Treatment Program ("Mid-Erie"). It is undisputed that this condition was imposed based upon the relator's adjudication in 1982 as a youthful offender for sodomizing a 13 year old boy when he was 14 years old.
The relator participated in a portion of the program, but did not satisfactorily complete the program and was terminated from it. As a result, on February 26, 2004 Mr. Johnson was served with a Notice of Parole violation.
A final parole revocation hearing was held on June 1, 2004. A representative of Mid-Erie, Julie Curtis, testified at the relator's final parole hearing that a component of Mr. Johnson's treatment program was called disclosure, where the offender is expected to accept responsibility for their behavior, acknowledge and understand their patterns of behavior, identify areas needing improvement and have some understanding of the impact of their behavior on their victims. According to Ms. Curtis, Mr. Johnson, despite being given two opportunities at disclosure, failed to admit to certain details of the conduct underlying his youthful offender adjudication, as required by the program. In particular, the relator failed to admit to using a knife and belt on his victim. Ms. Curtis also testified that the relator believed that he did not have any problems, that he was cured and that he "didn't have anything to work on" (Transcript of Final Parole Hearing, 6/1/04, p. 45, lines11-13).
The parole violation charge was sustained by the Administrative Law Judge and Mr. Johnson administratively appealed that determination. Mr. Johnson's appeal was denied on January 5, 2005 and these proceedings ensued.
LEGAL DISCUSSION
The court notes at the outset that since Mr. Johnson has essentially alleged that the special condition was arbitrarily and capriciously imposed and/or was not imposed according to law, his remedy is not a writ of habeas corpus, but rather a proceeding pursuant to Article 78 of the CPLR (see People ex. rel. DeFulmer v. Strack, 212 AD2d 555, 556 [2nd Dept 1995]; see also People ex rel. Kaplan o/b/o Fuentes v. York, 60 NY2d 648). However, the court may convert a habeas corpus petition to an Article 78 proceeding (see CPLR § 103[c]; People ex rel. Brown v. New York State Division of Parole, 70 NY2d 391) and finds it would be just and appropriate to do so in this case.
Mr. Johnson has made several arguments in his submissions to the court. First, he claims that his due process rights were violated because he was not allowed to examine the parole board's records, which apparently were the source of the victim's details of events as testified to by the treatment provider. The relator, however, did not subpoena the parole board's records and the Administrative Law Judge denied Mr. Johnson's counsel's request for an adjournment for the purpose of requesting and examining the parole board's records.
The decision whether or not to grant an adjournment of a final parole revocation hearing is well within the ALJ's discretion (see People ex rel. Matthews v. New York State Division of Parole, 58 NY2d 196, 201, citing 9 NYCRR § 8005.17[c][1]). In this case, the court finds that the Administrative Law Judge's denial of an adjournment was neither an abuse of discretion, nor a violation of the relator's due process rights (see Morrissey v. Brewer, 408 U.S. 471).
Mr. Johnson also claims that the Division of Parole has failed to follow its own internal guidelines with respect to the imposition of special conditions (Memorandum of Law at p. 5), rendering the special condition imposed upon him unlawful. That contention is without merit.
Those guidelines "are not promulgated pursuant to an express grant of legislative authority . . . and do not have the force of law" (see People ex rel. MacKelvey v. New York State Division of Parole, 138 AD2d 549 [2nd Dept 1988], citation omitted). Nor would the Board's failure to strictly follow those guidelines constitute an error of constitutional dimension (see People ex rel. Newland v. Travis, 185 Misc 2d 881 [Supreme Ct Bronx County 2000]).
Also without merit is Mr. Johnson's contention that the special condition is invalid because it was imposed by a parole officer rather than by the parole board. A special condition may be imposed before or after release by a parole officer, the board, a board member or an authorized representative of the Division of Parole (see 9 §§ NYCRR 8003.2[l]; 8003.3; see also 9 NYCRR § 8003.1[b]).
Mr. Johnson's principal contention is that the special condition was unlawfully imposed. It is well settled that "the decision to impose a special condition upon the release of an inmate is discretionary in nature and beyond the review of the court so long as made in accordance with law" ( Matter of Dickman v. Trietley, 268 AD2d 914, 916 [3rd Dept 2000]). The test as to whether a condition is lawful is whether it was rationally imposed (see Matter of Dickman v. Trietley, 268 AD2d at 916, citing Matter of Russo v. New York State Board of Parole, 50 NY2d 69, 77). In particular, a special condition is rational and thus lawfully imposed when, taking into account the relator's history, the condition is rationally related to preventing the relator from committing further offenses (see Matter of Jones v. New York State Division of Parole, 24 AD3d 827 [3rd Dept 2005]; Matter of Billups v. New York State Division of Parole, 18 AD3d 1085 [3rd Dept 2005]).
In this case, the court finds no basis in the record to conclude that the special condition is irrational. The testimony at the final revocation hearing was clear that the Mid-Erie program serves a variety of important interests geared toward prevention of further offenses. Moreover, an offender may be required to disclose the factual details underlying not only the offense of which he was convicted but also of other uncharged offenses (see McKune v. Lile, 536 U.S. 24). Mr. Johnson contends that he was forthcoming and truthful regarding the events underlying his adjudication for a sex offense, while the treatment provider found otherwise. The determination of whether the relator was being truthful is one of credibility, which is beyond the court's review (see Matter of Ciccarelli v. New York State Division of Parole, 11 AD3d 843 [3rd Dept 2004]).
Finally, Mr. Johnson contends that he did not violate the conditions of his parole "in an important respect" (see Executive Law § 259-i[c][iv]; 9 NYCRR § 8005.19[e]; People ex rel. Bayham v. Meloni, 182 Misc 2d 831 [Monroe County Ct 1999]). The court disagrees. The evidence at the final revocation hearing sufficiently demonstrated the importance of the treatment regimen at Mid-Erie and hence the importance of the special condition, as well as Mr. Johnson's violation of that condition.
Accordingly, the court converts Mr. Johnson's petition for a writ of habeas corpus into a proceeding pursuant to Article 78 of the Civil Practice Law Rules. For the reasons set forth above, Mr. Johnson's petition is denied and dismissed.
The foregoing constitutes the Decision and Order of the Court.