Opinion
No. 251205–2015.
11-12-2015
The PEOPLE of the State of New York ex rel. William MITCHELL (a/k/a/ Terrence Allen ), [Warrant No.640351, B & C # 349–15–07113, NYSID # 05510078Q], Petitioner, v. WARDEN, Anna M. Kross Correctional Facility, and New York State Department of Corrections and Community Supervision, Respondents.
Kerry Elgarten, Esq., Legal Aid Society, New York, NY, for the Petitioner. Alexander Melnitzky Assistant Attorney General, New York, NY, Counsel for the Respondent.
Kerry Elgarten, Esq., Legal Aid Society, New York, NY, for the Petitioner.
Alexander Melnitzky Assistant Attorney General, New York, NY, Counsel for the Respondent.
RICHARD L. PRICE, J.
Petitioner, by writ of habeas corpus submitted September 9, 2015, moves for an order vacating his parole warrant and releasing him from the custody of New York State Department of Corrections and Community Supervision (“DOCCS”) on the ground that he is being illegally detained because DOCCS failed to provide timely notice of the alleged parole violations and timely conduct a preliminary hearing pursuant to Executive Law §§ 259–i(3)(c)(i)(iii) and (iv), and further failed to support such violations with non-hearsay allegations as required by Executive Law § 259–i(3)(f)(v), in violation of such provisions and the Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution and N.Y. Constitution, article I, § 6. After review of the parties' respective papers submitted in connection with this matter, the petition is dismissed in its entirety.
I. Background and Procedural History
On May 14, 2010, judgment was entered against petitioner in Supreme Court, New York County (Carro, J.), upon his conviction of criminal sale of a controlled substance in the third degree. Petitioner was sentenced to term of two years imprisonment with a period of three years post-release supervision.
On September 8, 2014, petitioner was conditionally released and scheduled to be supervised by DOCCS until August 9, 2015. 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, which included 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 Community Supervision Office indicated below, unless other instructions are designated on my release agreement.
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2. I will make office and/or written reports as directed[:] Staten Island Area Office.
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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.
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8. I will not behave in such a manner as to violate the provisions of any law to which I am subject which provide for a penalty of imprisonment, nor will my behavior threaten the safety or well-being of myself or others.
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Prior to his release, petitioner was also served with a Continuation of Form 3010—12) Special Conditions (see Respondent's Exhibit A).
Among the terms and conditions imposed by DOCCS, petitioner was directed and instructed to report to the Staten Island Area Office within 24 hours of his release to parole supervision.
On September 9, 2014, petitioner is alleged to have violated Rules 1 and 2 by failing to make his arrival report to the Staten Island Area Office located at 146 Bay Street as directed within 24 hours of his release, and further failed to report to his parole officer (Charges 1 and 3, respectively).
On September 9, 2014, petitioner is also alleged to have violated Rule 4 by changing his approved residence at 400 East 30th Street in New York County (Bellevue Men's Shelter) without notifying his parole officer (Charge 2).
Based on these circumstances, DOCCS declared petitioner delinquent as of September 10, 2014 (see Respondent's Exhibit C), and issued a Violation of Release Report (VRR) on September 18, 2014 (see Respondent's Exhibit B). The VRR noted petitioner's extensive parole revocation history (six times between 1991 and 2001), as well as his penchant for absconding from parole supervision.
On September 18, 2014, DOCCS issued Parole Warrant No. 640351 (the warrant) for the petitioner (see Respondent's Exhibit C).
On June 18, 2015, petitioner was arrested and charged with a litany of charges relating to a crime spree occurring on, about and between October 18, 2014, and April 7, 2015, involving, among other things, an array of criminal activity such as fraud, forgery, criminal tampering, and criminal mischief (see Respondent's Exhibit D—G).
On June 21, 2015, DOCCS lodged the warrant against petitioner (see Respondent's Exhibit C).
On June 22, 2015, DOCCS received four arrest notifications indicating that petitioner's crime spree since having been released to parole occurred on at least four separate dates: October 18, 2014 (see Respondent's Exhibit D), January 3, 2015 (see Respondent's Exhibit E), January 20, 2015 (see Respondent's Exhibit F), and April 7, 2015 (see Respondent's Exhibit G).
On June 23, 2015, DOCCS, through Parole Officer M. Newton (PO Newton) attempted to personally serve petitioner at the Anna M. Kross Detention Center (AMKC) on Rikers Island with the Notice of Violation (NOV) and the VRR (see Respondent's Exhibits H and B, respectively). The NOV indicated that petitioner's preliminary hearing would be held on July 6, 2015. Notwithstanding DOCCS's attempt at personal service, petitioner refused to meet with PO Newton (see Respondent's Exhibits H, I, and J [Tr. 3:11–22], respectively).
On July 6, 2015, Administrative Law Judge John Cox (ALJ Cox) conducted and completed the preliminary hearing at the Rikers Island Judicial Center. Immediately prior to its commencement, ALJ Cox received in evidence PO Newton's Counsel Visit Tracking Form indicating that petitioner refused to meet with PO Newton (see Respondent's Exhibits I and J [Tr. 3:13–20] ).
Parole Office Alan Cohen (PO Cohen) testified that upon petitioner's refusal, he mailed a copy of the NOV and the VRR to the petitioner by certified mail at AMKC (see Respondent's Exhibit J [Tr. 4:1–6].
DOCCS then elected to proceed with Charge 1, which alleged that on September 9, 2014, petitioner violated Rule 1 by failing to make his arrival report to the Staten Island Area Office located at 146 Bay Street as directed within 24 hours of his release. Specifically, PO Cohen testified that on September 4, 2014, petitioner signed his release and discharge paperwork acknowledging the specific instruction to report at the Staten Island Field Office within 24 hours of his release. That instruction, provided by Michael Menichiello, a DOCCS Downstate Correctional Facility employee, was documented in a letter memorandum dated June 30, 2015, which provided in pertinent part:
I understand that there is a hearing being on [sic] regarding Mitchell, William 10A2771. Unfortunately due to staffing constraints I am unable to attend. I ask that you accept this memorandum in my absence.
I met with inmate Mitchell on September 4, 20145 to sign his release/discharge paperwork. My note on CMS indicate [sic] that his release date was September 8, 2014 and that he was instructed to report to his approved residence which was Bellevue Men's Shelter. He was also instructed to report to Staten Island Area field Office to PO Cohen within 24 hours of his release. I also made note that he had no questions/concerns during the interview and that he stated he understood his reporting instructions (see Respondent's Exhibits K and J[Tr. 5:17–24).
ALJ Cox received a copy of this letter memo in evidence (see Respondent's Exhibit J [Tr. 6:25] ).
PO Cohen testified that in addition to failing to report to the Staten Island Field Office as instructed, petitioner also failed to report to the Bellevue Men's Shelter, a fact confirmed by PO Cohen upon contacting Linda Mills, a Bellevue Department of Homeless Services supervisor, who indicated that as of September 10, 2014, petitioner was not there (See Respondent's Exhibit J [Tr. 7:10–11] ).
Upon the conclusion of the preliminary hearing, ALJ Cox found credible testimony established probable cause that petitioner violated a condition of his parole in an important respect—failing to report to his parole officer as specifically instructed to do so. Prior to issuing his finding, however, petitioner abruptly left the hearing room stating to ALJ Cox, “You can suck a dick” (see Petitioner's Exhibit J [Tr. 12:18–20, 11:19, respectively] ).
On or about July 17, 2015, DOCCS issued a Supplemental Violation of Release Report (SVRR) containing parole violation Charges 4, 5, and 6, all of which related to petitioner's fraud, forgery, possession of forged instruments, criminal tampering, and criminal mischief crime spree. All three SVRR parole violation charges allege petitioner violated Rule 8 (see Respondent's Exhibit M).
Petitioner now asserts that his arrest on parole violation charges was unlawful because DOCCS failed to provide him with notice of those charges within three days of executing the warrant, failed to timely conduct a preliminary hearing in violation of EL §§ 259–i(3)(c)(i)(iii) and (iv), and failed to support the charged violations with non-hearsay allegations pursuant EL § 259–i(3)(f)(v).
For the reasons set forth below, petitioner's claim is rejected.
II. Discussion
A. Notice
Within three days of the warrant's execution, a parolee must be given written notice of the time, place, and purpose of the preliminary hearing (see EL 259–i [3][c][i ] and [iv] ). 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 (see EL 259–i[3][c][iii]; 9 NYCRR 8005.3 [a]; People ex rel. Williams v. Walsh, 241 A.D.2d 979, 661 N.Y.S.2d 371 [4th Dept], lv denied 90 N.Y.2d 809 [1997] ; see also People ex rel. McKay v. Sheriff, 152 A.D.2d 786, 543 N.Y.S.2d 567 [3d Dept 1989], lv denied 74 N.Y.2d 616 [1989] ). Failing to provide such, then, notice entitles a petitioner to vacatur of the warrant (People ex rel. Johnson v. NYS Div. of Parole, 148 A.D.2d 401, 403, 539 N.Y.S.2d 349 [lst Dept 1989] ; see also, People ex rel. Willis v. Travis, 178 Misc.2d 469, 680 N.Y.S.2d 422 [Sup Ct Nassau County 1998, Ort J] ).
The three-day notice obligation is triggered when a parole violation warrant is executed against a parolee. Execution occurs when a parolee is taken into custody under the warrant “by taking such person and having him detained” (EL 259–i[3][a][ii]; see People ex rel. Morant v. Warden, Rikers Is., 35 A.D.3d 208, 826 N.Y.S.2d 40 [1st Dept 2006], lv denied 8 N.Y.3d 809 [2007] ; People ex rel. Kato v. Warden, George Motchan Detention Ctr., 27 Misc.3d 1213[A] [Sup Ct, Bronx County 2010, Newman, J.] ). Execution, however, requires that the warrant be the exclusive basis of such detention (Moody v. Daggett, 429 U.S. 78, 87 [1976] ).
Here, it is undisputed that the parole warrant was issued on September 18, 2014. It is also undisputed that it was lodged against him on June 21, 2015, upon his June 18, 2015, arrest. What petitioner disputes is the parole warrant's execution, arguing in essence that the three-day notice requirement trigger date, so to speak, was June 18, 2015. As such, he contends service of the NOV and VRR should have been effected by June 21, 2015. He is wrong.
Petitioner erroneously conflates lodging and execution. Such conflation is, perhaps, understandable since they are often used interchangeably. Yet, as has been clearly noted, lodging of a parole warrant against a parolee already detained on an unrelated basis is not synonymous with execution. Rather, execution is only effected when the parole warrant serves as the sole or exclusive basis for such detention.
The three-day statutory period, then, formally commenced on June 22, 2015, the day after lodging (see General Construction Law § 20 ; People ex rel. Gary v. Campbell, 241 A.D.2d 723, 660 N.Y.S.2d 186 [3d Dept 1997] ). As such, DOCCS was to have served petitioner with the NOV and VRR on or before June 24, 2014, which it did on June 23, 2015. Though not applicable here, it should be noted that General Construction Law § 25–a [1 ] extends timely notice to the following business day when the date on which it falls is a weekend or public holiday]; People ex rel. Atkinson v. Warden, Rikers Is., 201 A.D.2d 271, 607 N.Y.S.2d 256 [1st Dept 1994] ; People ex rel. Frost v. Meloni, 124 A.D.2d 1032, 508 N.Y.S.2d 764 [4th Dept 1986], lv denied 69 N.Y.2d 606 [1987] ). Regardless, such notice was therefore timely.
Petitioner's claim, then, that the Division of Parole violated Executive Law § 259–i(3)(c)(iii) by failing to provide him with notice of his preliminary parole revocation hearing is unavailing. PO Newton attempted to personally serve petitioner with the NOV and VRR. The NOV clearly indicated that the preliminary hearing would be held July 6, 2015. When petitioner refused to meet with PO Newton to accept them, DOCCS mailed copies to petitioner via certified mail. If, indeed, there was any defect, it was of his own doing. Consequently, this court finds that DOCCS timely and properly served petitioner in a timely manner as required by Executive Law § 259–i(3)(c)(iii) (See People ex Rel. Ramon Herrera v. Warden, Anna M. Kross Ctr, NYS Div of Parole, 2001 N.Y. Slip Op 40328[U] [Sup Ct Bronx Co 2001] [DOCCS failure to properly serve, or reasonably attempt to serve, petitioner with the NOV and VRR prior to preliminary hearing violated his statutory rights]; People ex rel. Willis v. Travis, 178 Misc.2d 469, 680 N.Y.S.2d 422 [Sup Ct, Nassau County 1998] ).
B. Preliminary Hearing
Regarding the preliminary hearing itself, an alleged parole violator is entitled to a preliminary hearing “no later than fifteen days from the date of the execution of the [parole] warrant” (see EL 259–i[3][c][i ] and [iv] ). Abrogation of this 15–day rule is a due process violation that requires a parolee 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, 624 N.Y.S.2d 580 [4th Dept 1995] ).
Significantly, though, a preliminary hearing must only be scheduled within 15 days after execution of the warrant; it need not, however, be completed. “When 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 v. Enders (107 A.D.2d 1066 [4th Dept], appeal dismissed 65 N.Y.2d 1050, 1067 [1985] ).
As indicated, DOCCS lodged the warrant on June 21, 2015. Since, as noted, a parole violation warrant is deemed executed on the date that “the alleged violator is detained exclusively on the basis of such warrant ... [and] within the convenience and practical control of the division of parole....” (Executive Law § 259–i[3][a][iv] ), execution in this regard is irrelevant here because petitioner had already been detained pursuant to is crime spree arrest. Thus, the 15–day period did not commence on June 18, 2015, but rather on June 21, 2015, when DOCCS lodged it against the petitioner. Accordingly, petitioner's preliminary hearing must have been commenced by July 6, 2015, which it was. The preliminary hearing was therefore timely.
C. Non–Hearsay Evidence
EL 259–i(3)(f)(v) provides that suspected parole violators
at the revocation hearing ... have the right to confront and cross-examine adverse witnesses, unless there is good cause for their non-attendance as determined by the presiding officer present witnesses and documentary evidence in defense of the charges; and present witnesses and documentary evidence relevant to the question whether reincarceration of the alleged violator is appropriate (EL 259–i[3][f][v] ).
Petitioner claims that the hearing officer's finding of probable cause was based entirely upon hearsay evidence. Specifically, he argues that DOCCS failed to present any non-hearsay evidence at the preliminary hearing. As such, his statutory right to properly confront and cross-examine adverse witnesses was effectively abrogated. This court disagrees.
Generally, the rules of evidence need not be strictly adhered to at administrative proceedings (see People v. Rennie, 190 A.D.2d 830, 593 N.Y.S.2d 829 [2nd Dept], lv denied 81 N.Y.2d 975 [1993] ; People v. Machia, 96 A.D.2d 1113, 467 N.Y.S.2d 708 [3rd Dept 1983] [“A finding of a probation violation ... must be based upon a preponderance of the evidence ... which requires a residuum of competent legal evidence in the record”] ). Specifically, at a preliminary parole revocation hearing, it is well established that hearsay evidence is admissible (People ex rel. Mahmood v. Warden, Sup Ct, Bronx County, Oct. 25, 2010, Marvin, J., index No. 251251–10; People ex rel. Saenz v. N.Y.S. Division of Parole, Sup Ct, Bronx County, Apr. 19, 2010, Villegas, J., index No. 252309–09; People ex rel. Garner v. Warden, Sup Ct, Bronx County, May 26, 2009, Marcus, J., index No. 250469–09; see People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139 [1973] ). It is also well established, however, that a finding of a parole or probation violation requires it not be based on hearsay evidence alone (see Rennie at 830, 593 N.Y.S.2d 829 [2nd Dept], lv denied 81 N.Y.2d 975 [1993] ; Machia at 1113, 467 N.Y.S.2d 708 [3rd Dept 1983].
Here, DOCCS presented the testimony of PO Cohen, the parole officer to whom petitioner was specifically instructed to report within 24 hours of his release on September 8, 2014. PO Cohen testified that he failed to report on September 9, 2014, September 10, 2014, and thereafter. This fact was well within PO Cohen's personal knowledge. Such testimony surely constitutes non-hearsay evidence. While petitioner argues that the failure to offer direct testimony from both the AMKC correction officer regarding his refusal and Michael Menichiello's release/discharge instructions precludes a finding of probable cause, he overlooks PO Cohen's testimony based on his observations. Given that the evidence presented included some non-hearsay testimony, this court concludes ALJ Cox's probable cause finding was not solely predicated on hearsay.
III. Conclusion
Based on the reasons stated above, this court finds that petitioner received timely and proper notice of the charged parole violations, and was provided with a timely and proper preliminary hearing pursuant to Executive Law §§ 259–i(3)(c)(i)(iii) and (iv), and (3)(f)(v). Petitioner's writ of habeas corpus must therefore be dismissed in its entirety.
This constitutes the decision and order of the court.
The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.