Opinion
No. 251480–2011.
2012-08-3
The PEOPLE of the State of New York ex rel. Derrick MACK, Petitioner, v. WARDEN, RIKERS ISLAND CORRECTIONAL FACILITY, and New York State Department of Corrections and Community Supervision, Respondents.
Jane Sampeur, Esq. Legal Aid Society for petitioner. James Cooney, Assistant Attorney General, for respondent.
Jane Sampeur, Esq. Legal Aid Society for petitioner. James Cooney, Assistant Attorney General, for respondent.
RICHARD L. PRICE, J.
By writ of habeas corpus submitted November 2, 2011, petitioner moves for an order vacating his parole warrant and releasing him from the custody of New York State Department of Corrections and Community Supervision (“respondent” or “DOCCS”). Specifically, petitioner asserts DOCCS failed to timely notify him of the charges filed against him, and failed to timely conduct a preliminary parole revocation hearing in violation of the Due Process Clauses of the Fourteenth Amendment and the New York State Constitution, and Executive Law §§ 259–i(3)(c)(i)(iii) and (iv). By decision dated December 21, 2011, this court dismissed petitioner's writ. This expands that decision.
Background and Procedural History
On February 21, 2007, judgment was entered against petitioner in Supreme Court, New York County, upon his conviction of criminal sale of a controlled substance in the fourth degree. Defendant was sentenced on that conviction to a determinate term of three years imprisonment, and a period of three years post-release supervision.
On June 2, 2011, petitioner was conditionally released to DOCCS supervision. In connection with his conditional release, petitioner signed a document entitled “Certificate of Release to Parole Supervision” (see Respondent's Exhibit A). By signing this document, petitioner agreed to comply with the terms and conditions set forth in it, including the following:
CONDITIONS OF RELEASE
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1. I will proceed directly to the area to which I have been released, and, within twenty-four hours of my release, make my arrival report to the Office of the Division of Parole, unless other instructions are designated on my release agreement.
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2. I will make office and/or written reports as directed.
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4. I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property. I will discuss any proposed changes in my residence, employment or program status with my Parole Officer. I understand that I have an immediate and continuing duty to notify my Parole Officer of any changes in my residence, employment or program status when circumstances beyond my control make prior discussion impossible.
DOCCS contends that on June 3, 2011, the day after being released from state prison, petitioner was declared delinquent for violating his Conditions of Release. Specifically, it asserts that petitioner (i) failed to make his initial report to his parole officer within twenty four (24) hours of his release from prison; (ii) failed to make his mandatory office report on June 3, 2011 (and thereafter); and, (iii) changed his approved residence without permission.
On June 30, 2012, the DOCCS issued Parole Warrant No. 635896 (the warrant) (see Respondent's Exhibit C). Thereafter, on August 12, 2011, the warrant was lodged against petitioner.
On August 15, 2011, Parole Officer Doreen Ward (“PO Ward”) attempted to personally serve petitioner with the Notice of Violation and Violation of Release Report (see Respondent's Exhibits D and B, respectively), but was unable to do so because petitioner was unavailable as a result of having been designated “medically isolated” (see Respondent's Exhibit E). That notice also informed petitioner that the preliminary parole revocation hearing was scheduled for August 19, 2011. She then sent copies of those documents to petitioner by way of certified mail (Respondent's Affidavit ¶ 8).
On Friday, August 19, 2011, DOCCS commenced petitioner's preliminary hearing as scheduled. Petitioner declined to appear, however, citing Muslim religious observance (see Respondent's Exhibit G). Consequently, DOCCS adjourned the preliminary hearing to August 25, 2011 (see Respondent's Exhibit F). On August 23, 2011, PO Ward attempted to personally serve petitioner at ARDC with the notice of the rescheduled preliminary hearing, and the Notice of Violation and the Violation of Release Report. PO Ward was unable to do so, however, because petitioner refused to get dressed. She then “left a set of papers with the front entrance security officer and ... spoke to Officer Pounder on the phone indicating directly ... that Mr. Mack refused to get dressed. There could be no counsel visit ... to serve him” (see Respondent's Exhibits J and I, [refusal of notice and record of preliminary on August 30, 2011, respectively] ).
On August 25, 2011, petitioner's preliminary hearing reconvened, which petitioner attended. At that time, petitioner was personally served with the Notice of Violation and the Violation of Release Report. DOCCS Parole Hearing Officer Chamorro (“PHO Chamorro”) then adjourned the hearing until August 30.
On August 30, 2011, DOCCS conducted and completed the preliminary hearing. Parole Hearing Officer Yolanda Hernandez found probable cause existed that petitioner violated a condition of his parole in an important respect—failing to make his arrival report within twenty four hours of release (see Respondent's Exhibit I).
Petitioner asserts that since the warrant was lodged against him on August 12, 2011, DOCCS was required to hold a preliminary hearing on or before August 27, 2011. As the hearing was conducted on August 30, 2011, petitioner argues that DOCCS exceeded the 15–day statutory period, and the warrant must therefore be vacated. Petitioner's claim is meritless.
Discussion
A. Notice
Executive Law § 259–i(3)(c)(iii) provides: 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 [preliminary] hearing ... [which] shall state what conditions of presumptive release, parole, conditional release or post-release supervision are alleged to have been violated, and in what manner” (EL 259–i[3][c][iii] ).
The purpose of this requirement is to give an alleged parole violator adequate notice of the time, date and place of the preliminary parole revocation hearing, inform him of the basis for the violation, and enable him to adequately prepare (People ex rel. Williams v. Walsh, 241 A.D.2d 979 [4th Dept], lv denied90 N.Y.2d 809 [1997] ). With this purpose in mind, courts have consistently held that failure to give an alleged parole violator notice of rescheduled preliminary hearings neither violates a parolee's due process rights nor entitles him to be restored to parole ( Walsh at 979; People ex rel Walker v. Warden, 162 A.D.2d 107 [1st Dept 1990]; see also People ex rel. McKay v. Sheriff, 152 A.D.2d 786 [3d Dept], lv denied74 N.Y.2d 616 [1989] ).
In this case, PO Ward timely served petitioner with notice of the scheduled preliminary hearing as well as charged parole violations. The parole warrant was executed on August 12, 2011. Three days later, on August 15, 2011, PO Ward attempted to personally serve petitioner with the Notice of Violation and Violation of Release Report, which notified him that his preliminary had been scheduled for August 19, 2011, and specified the alleged violations of his conditional release. Because petitioner was “medically isolated,” he was unavailable to receive service. Consequently, PO Ward sent copies of by way of certified mail, return receipt requested.
Although Executive Law § 259–i(3)(c)(iii) does not explicitly require personal service, it is certainly the better practice when possible. In circumstances such as here, where personal service was impossible, sending notice of the preliminary hearing and alleged violations via certified mail suffices. And, since there is no requirement that petitioner be served with notice of rescheduled preliminary hearings, PO Ward was under no obligation to make any attempt to serve petitioner with notice that the August 19 hearing had been rescheduled for August 25. That she attempted to do so on August 23 is conscientious and admirable. But upon petitioner's unexplained and unjustified refusal to get dressed and accept service, PO Ward had absolutely no duty to send the notice certified mail. Even if a second attempt at personal service was required, which it is not, petitioner's refusal relieved her of it. Nevertheless, it appears from the August 30 hearing record that at the August 25 hearing, which petitioner attended, PHO Chamorro somehow concluded that PO Ward was obligated to send another set of papers by way certified mail after petitioner's refusal; she was not. B. Preliminary Hearing
An alleged parole violator must be afforded a preliminary hearing “no later than fifteen days from the date of the execution of the [parole] warrant” (see N.Y. Executive Law §§ 259–i[3][c][i ] and [iv] ). Abrogation of the 15–day rule is a due process violation that entitles a parolee to be restored to parole ( see, Matter of White v. New York State Div. of Parole, 60 N.Y.2d 920, 922 [1983];People ex rel. Melendez v. Warden, Rikers Is., 214 A.D.2d 301, 303 [4th Dept 1995] ). The preliminary hearing need not, however, be completed withing fifteen days. The seminal case addressing the 15–day rule and adjournments of preliminary hearings is Matter of Emmick v. Enders (107 A.D.2d 1066 [4th Dept], appeal dismissed65 N.Y.2d 1050 [1985] ).Emmick held that “[w]hen a preliminary parole revocation hearing has been timely scheduled, or held in whole or in part, and thereafter is adjourned for legitimate reasons, without prejudice to the petitioner, there is no violation of the 15–day limit” ( Emmick at 1067).
While determining what constitutes a legitimate reason is often factually sensitive, such reasons include witness unavailability ( People ex rel Meyers v. Warden, Sup Ct, Bronx County, April 24, 2009, Dawson, J., Index No. 3400009–08 [adjournment permissible when petitioner's parole officer, who was on vacation, could not testify] ), medical incapacitation (People ex rel Burley v. Warden, Rikers Is., 70 A.D.2d 518, 518 [1st Dept], lv denied48 N.Y.2d 602 [1979] [adjournment permissible where petitioner was incapacitated by reason of illness and did not waived his right to be present] ), and religious observance (People ex rel Moore v. Warden, Rikers Is ., 36 AD3d 494 [1st Dept 2007] [adjournment permissible when the hearing was scheduled for petitioner's religious holiday] ). In determining whether a preliminary hearing was rescheduled for a legitimate reason, a court should consider the basis for adjourning it, and whether the DOCCS acted “energetically and scrupulously” in rescheduling it ( see e.g. People ex rel Hampton v. Warden, 211 A.D.2d 566, 567 [1st Dept 1995] ).
Here, DOCCS initially scheduled petitioner's preliminary hearing for Friday, August 19, 2011. Being that petitioner is a practicing Muslim, he declined to attend. DOCCS then adjourned the hearing until August 25. Adjournments for the sole purpose of accommodating petitioner's religious or medical needs present no violation of the 15–day requirement imposed by Executive Law § 259—i (3)(c)(iv) (Moore, 36 AD3d 494;Emmick, 107 A.D.2d 1066). Thus, this adjournment is not charged to DOCCS. Nevertheless, DOCCS adjourned the hearing until August 25, 2011, which was within the 15–day period.
On August 25, 2011, the preliminary hearing was rescheduled for August 30, 2011. Petitioner claims that because August 30 was three days beyond the 15–day requirement, the warrant must be dismissed. He bases this claim on the incorrect conclusion that the six days from August 19 to August 25 are charged to DOCCS; as noted above, they are not. Petitioner further relies on PHO Chamorro's inexplicable decision to charge DOCCS with adjournment from August 25 until August 30. While it was certainly within PHO Chamorro's discretion to give the petitioner an adjournment—though this court questions its prudence given his dilatory conduct—doing so at DOCCS's expense requires a leap of logic to understand. In fact, from the warrant's execution (August 12) until the preliminary hearing was conducted (August 30), DOCCS accrued only seven days of chargeable time (August 12–August 19).
Simply put, where, as here, a parolee facilitates the delay of a preliminary hearing by refusing to get dressed, thus precluding DOCCS from personally serving him with the notice of violation, he should hardly be afforded the courtesy or benefit of an adjournment. If he were, however, it would be unconscionable to charge that period to DOCCS. Refusing service of notice and claiming it was either insufficient or otherwise improper is disingenuous in and of itself; receiving an adjournment because of it and arguing that the delay is attributable to DOCCS can only be described as “chutzpah.” Perhaps it is clever, but it is certainly audacious.
Conclusion
This court finds that the petitioner received timely and proper notice of the charged parole violations and the preliminary hearing pursuant to New York Executive Law §§ 259–i(3)(c)(iii). This court also concludes that the scheduling and conducting of the preliminary parole revocation hearing was timely pursuant to New York Executive Law §§ 259–i(3)(c)(i) and (iv). Petitioner's writ of habeas corpus is therefore be dismissed.
This constitutes the decision and order of the court.