Opinion
No. 250062–2012.
2012-06-8
The PEOPLE of the State of New York ex rel. William MANNING, Petitioner, v. WARDEN, Anne M. Kross Center, New York State Department of Correction and Community Supervision, Respondents.
Elon Harpaz, Esq., The Legal Aid Society, Parole Revocation Defense Unit, New York, for Petitioner. Eric T. Schneiderman, Attorney General, James B. Cooney, Esq., Assistant Attorney General, New York, for Respondent, Department of Correction.
Elon Harpaz, Esq., The Legal Aid Society, Parole Revocation Defense Unit, New York, for Petitioner. Eric T. Schneiderman, Attorney General, James B. Cooney, Esq., Assistant Attorney General, New York, for Respondent, Department of Correction.
DOMINIC R. MASSARO, J.
Petitioner William “Billy” Manning (hereinafter Petitioner) demands a writ of habeas corpus directed to the Warden of Anna M. Kross Center at Rikers Island Correctional Center and the New York State Department of Correction and Community Supervision (hereinafter, DOCCS). The writ seeks to vacate Parole Warrant # 636500 issued against Petitioner; thereby cancelling an alleged parole delinquency.
Stated another way, Petitioner asks that a habeas corpus writ be issued to facilitate inquiring into the legality of his detention and to cancel, with prejudice, the parole delinquency declared against him. Consequently, Petitioner wants to be released from custody. In the event the Court determines procedural defects exist, Petitioner asserts that his prayer should be converted into an Article 78 proceeding.
BackgroundExecutive Law § 259–i(3)(c)(i) requires suspected parole violators be “afford[ed]” a preliminary parole revocation hearing within fifteen days from the time the warrant for retaking is executed; similarly, 259–i(3)(c)(iv) requires that “[t]he preliminary hearing be scheduled to take place no later than fifteen days from the date of the execution of the warrant” (see generally, People ex rel. Blasco v. New York State Div. of Parole, 33 Misc.3d 650 [Sup.Ct. Bronx 2011] ).
In this instance, Petitioner says he is entitled to release from custody because Respondents failed to provide a prompt preliminary hearing within the statutorily required fifteen days of execution of the warrant (see, Executive Law 259–i[3][c][i] ). The basic question for the Court is whether a legitimate reason exists why the preliminary hearing was continued beyond the statutorily allowed fifteen days (see generally, People ex rel. Gonzales v. Dalsheim, 52 N.Y.2d 9 [1980] ).
Petitioner requested that he be excused on Fridays in observance of the Islamic faith. Respondents do not dispute Petitioner's claim to this privilege (entire record).
The disputed hearing was initially docketed for November 18, 2011, which is within 15 days of the warrant's execution; it was adjourned by the hearing officer to accommodate Petitioner's religious needs. The continuences were first to November 22, 2011 (15th day) and then to November 28, 2011, because the parole officer failed to appear at the earlier hearing. The preliminary hearing was completed on November 28, 2011, the twenty first day (see generally, People ex rel. Moore v. Warden of Rikers Is. Correctional Facility, 36 AD3d 494 [1st Dept.2007] ).
No timing violation exists because the preliminary hearing was initially scheduled within the statutory period and continued from that date only because Petitioner refused to appear. The Court notes that Petitioner submitted no written request for religious preference and the hearing officer's continuance relied solely upon information supplied by the parole officer at the preliminary hearing (see generally, People ex rel. Williams v. Warden, Index No. 340049–2009[Sup Ct. Bronx 2009]; People ex rel Terry v. Warden, Index. No. 250655–2007 [Sup Ct. Bronx 2007]; People ex rel Meyers v.Warden, Index No. 3400009–2008 [Sup.Ct. Bronx 2008] ) .
Respondents supplied these cases at Exhibit M to their answering papers.
The Court understands that Petitioner refused to appear at the preliminary hearing, declined to receive or sign the appropriate Form 9011, and told the parole officer he wanted to go directly to the final hearing (Exhibit G, Transcript page 3). Relying upon the Parole Officer's representations, the hearing officer granted the continuance, but charged the delayed time against Petitioner. The hearing was rescheduled for November 22, 2011, the last timely day within the fifteen days period (Exhibit G, Transcript page 3) (see also, Exhibits H and I).
The Court finds it significant that Petitioner refused to sign documents memorializing his religious requests.
Subsequently, because of confusion caused by rescheduling, Petitioner's hearing was not held on November 22, 2011, the last valid date, but reconvened on November 28, 2012, the twenty first day after service of the warrant. At the reconvened preliminary hearing, Petitioner's counsel argued that Petitioner had no notice or service issues in dispute, but raised the fact that Petitioner appeared on November 22, 2011 as directed for the preliminary hearing but Parole did not appear (see, Exhibit J, Transcript page 3). Therefore, in Petitioner's view, he was denied due process.
Rescheduling the preliminary hearing was complicated by the Thanksgiving holiday which was a day before Muslim Sabbath observations.
Petitioner reminds the Court that the purposes of a preliminary hearing is to determine whether probable cause exists to proceed with an administrative proceeding when a parolee allegedly violates a condition of release. If probable cause exists, Petitioner must remain in custody pending a final hearing upon his parole violation (see generally, Emmick v. Enders, 107 A.D.2d 1066 [4th Dept.1985] [dissenting opinion] ). 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.
Petitioner was originally incarcerated for his 2008 conviction in New York County for Attempted Promoting Prison Contraband in the First Degree for which he was sentenced to an incarceratory term of one and a half years to three years. Petitioner's release occurred on October 15, 2010, after Petitioner agreed to conditions contained in the Certificate of Release to Parole Supervision which remains in effect (Exhibit B). On August 30, 2011, Petitioner was declared an absconder after failing to keep appointments with his parole officer and declared delinquent for three release conditions (see, Exhibit C). Later that year, Petitioner was arrested in New York County on robbery charges (see, Exhibit D). A warrant was issued on November 7, 2011 and timely served on November 9, 2011(see, Exhibit E and F).
Legal Discussion
Petitioner's application for habeas corpus relief is denied upon findings herein.
Concerning Petitioner's alleged denial of a right to a timely preliminary hearing, the Court finds his claim to be merit less. While no dispute exists that a preliminary hearing must be held within fifteen days of warrant service (see generally, People ex rel Blasco v. New York State Division of Parole, supra.), the instant preliminary hearing meets time requirements, being initially scheduled for November 18, 2011, and completed on November 28, 2011, which date was twenty one days after warrant service.
The Court finds that Respondents provided a legitimate reason for adjournments beyond the fifteen days limit: Petitioner's non-cooperation, as exhibited by (1) refusing to receive or sign his Form 9100, (2) failing to submit a written request for religious special consideration, and (3) oral waiver of a preliminary hearing, which show Petitioner intentionally waived statutory and constitutional objections to the late hearing. Because Petitioner's preliminary hearing was scheduled within fifteen days of the warrant's execution, and was only adjourned to accommodate Petitioner's religious needs, there was no violation of time limitations imposed by Executive Law §§ 259–i(3)(c)(i) and (iv) (see generally, People ex rel. Moore v. Warden, supra ).
No argument exists that Petitioner was properly served with the notice of preliminary hearing. Not only was any delay the result of Petitioner refusing service, no prejudice exists with respect to the delay ( see generally, People ex rel. Washington v. New York State Div. of Parole, 279 A.D.2d 379 [1st Dept.2001].
While Petitioner apparently argued at the preliminary hearing that the Court must review the hearing officer's reasons for continuing the case, no such requirement is apparent in the statutory language. The Official Compilation of Codes, Rules and Regulations of the State of New York, title 9, § 8005.4(b)(3) provides only that it is within the preliminary hearing officer's authority to “conduct preliminary hearings and provide for the adjournments thereof” (see generally, People ex rel Blasco v. New York State Division of Parole, supra ] ). Therefore, the Court finds neither hearing officer erred when refusing to charge the time against Respondents for the adjournments, and the hearing officer acted reasonably in light of Petitioner's expressed waiver of a preliminary hearing and his general uncooperativeness in the proceedings. Further, Petitioner falls to show prejudice arose from the delay. Consequently, the Court holds no constitutional or statutory violation occurred under either federal or state constitutions (see generally, People ex rel. Moore v.Warden of Rikers Is. Correctional Facility, supra.).Upon consideration of the record, the Court finds no reason for converting this matter into an Article 78 proceeding. Likewise, the Court sees no reason to review the effect of Petitioner's pending New York County criminal matters upon this application.
The Court read the following papers in deciding this matter: Petition for Writ of Habeas Corpus with attachments; and Affirmation of James B. Cooney, Esq., in Opposition to Petition for Writ of Habeas Corpus with attachments.
ORDERED that the branch of the Petition applying for a Writ of Habeas Corpus seeking release of Petitioner from Respondents' custody is DENIED, and it is further
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, in the alternative, to convert this application to a CPLR Article 78 proceeding 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.