Opinion
No. 340355–12.
2012-08-10
The PEOPLE of the State of New York ex rel. Andre RUSHION, Petitioner–Relator, v. WARDEN, RIKERS ISLAND CORRECTIONAL FACILITY, and New York State Department of Corrections and Community Supervision, Respondents.
Percival A. Clarke, Esq., for the petitioner. Anna M. Hehenberger, Esq., for the Attorney General.
Percival A. Clarke, Esq., for the petitioner. Anna M. Hehenberger, Esq., for the Attorney General.
DORIS M. GONZALEZ, J.
The petitioner Andre Rushion moves by writ of habeas corpus for an order vacating his parole warrant and reinstating him to parole supervision, based upon the grounds that the notice of the preliminary hearing, and final revocation hearing provided by New York State Department of Corrections and Community Supervision were untimely, thereby violating N.Y. Executive Law § 295—i(3)(c)(i) and (iii). For the reasons set for the reasons set forth below, the writ of habeas corpus is dismissed.
Upon the: 1) Pro Se petition for Writ of Habeas Corpus by Andre Rushion, dated March 29, 2012; 2) verified amended petition for Writ of Habeas Corpus by Percival A. Clarke, Esq., dated May 16, 2012; 3) reply affirmation of opposition by Anna M. Hehenberger, Esq, dated June 12, 2012; 4) verified reply by Andre Rushion, dated June 14, 2012; and FACTUAL HISTORY
On February 20, 2008, the petitioner was tried by a jury and convicted of Attempted Criminal Sale of a Controlled Substance in the Third Degree, and sentenced to an indeterminate term of zero to four years incarceration and four years, nine months, and twenty-seven days of Post–Release Supervision.
Petitioner was released to parole supervision on May 6, 2011. Prior to his release, he was informed by New York State Department of Corrections and Community Supervision (“DOCCS'), that failure to abide by the conditions imposed by DOCCS, could result in the revocation of his release. Barring any violation of his conditions of release to parole supervision, petitioner was scheduled to be supervised until March 3, 2016. On December 1, 2011, the petitioner was declared delinquent after having a positive urinalysis test for cocaine. According to the violation of release report, the petitioner was charged with violating three conditions of his release for the use of cocaine without medical authorization on December 1, 2011 and December 13, 2011, and the use of marijuana without medical authorization on December 13, 2011.
A warrant for the retaking and temporary detention of petitioner was issued on December 13, 2011. On December 14, 2011 the parole warrant was executed. On Dec 16, 2011, Parole Officer Conyers attempted to serve petitioner with the violation of release report and notice of violation at Rikers Island and sent a copy of the violation package to the petitioner via certified mail with return receipt requested. The written notice of violation indicated the petitioner refused to accept service and a correction officer signed on behalf of the petitioner.
The preliminary revocation hearing was scheduled and commenced on December 22, 2012. Petitioner testified he received notice of violation via certified mail on December 21, 2011. The preliminary hearing resulted in a finding of probable cause that petitioner used a controlled substance without medical authorization on December 13, 2012, and a final revocation hearing was scheduled for January 6, 2012.
On January 5, 2012 the final revocation hearing commenced and adjourned to January 25, 2012, at the request of the division of parole. On January 25, 2012 the final revocation hearing continued and was adjourned to February 17, 2012, at the request of the division of parole and by petitioner's consent. On February 17, 2012 the administrative law judge granted a further adjournment at the request of both parties. On March 17, 2012, the hearing continued and was adjourned due to petitioner's disruptive conduct. On March 30, 2012, the hearing continued and the administrative law judge granted petitioner a continuance to May 15, 2012.
During the May 15, 2012 hearing petitioner's counsel informed the court that petitioner had lodged a complaint against him to the First Department Discipline Committee, and requested to be relieved from the case. The application was granted and another 18–B attorney was assigned to represent the petitioner. The May 15, hearing was adjourned to June 13, 2012, per the petitioner's request for a continuance.
DISCUSSION OF LAW
The petitioner is entitled to timely written notice of the “time, place, and purpose” of the hearing within three days of execution of the warrant pursuant to New York Executive Law § 259–(i)(3)(c)(iii), and not less than 48 hours before the preliminary hearing pursuant to 9 NYCRR § 8005.3(a). In the instant matter, the parole revocation warrant was executed on December 14, 2011. The administrative law judge deemed petitioner was served on December 16, 2011, although petitioner's actual receipt of service was on December 21, 2011. The petitioner's own conduct in refusing to accept service, caused the delay in service. People ex rel. Atkinson v. Warden, Rikers Is. Correctional Facility, 201 A.D.2d 271, 272, 607 N.Y.S.2d 256; See Cascione v. Acme Equipment Corp., 23 A.D.2d 49, 258 N.Y.S.2d 234.
It is well settled that failure to comply with the three day limit does not affect the right to be restored to parole absent a showing of prejudice. People ex rel. Thompson v. Warden Rikers Island Correctional Facility, 41A.D.3d 292, 41 A.D.3d 292, 839 N.Y.S.2d 47; citing People ex rel. Washington v. New York State Div. of Parole, 279 A.D.2d 379, 380, 720 N.Y.S.2d 22. The petitioner fails to allege or show any prejudice by the claimed two day delay in the notice. Id. at 48, 720 N.Y.S.2d 22. Therefore the contention that petitioner's right to timely notice of the preliminary parole revocation was violated is meritless.
It is well settled that petitioner is entitled to final revocation hearing within ninety days of a probable cause determination. While a final hearing must be scheduled to take place within 90 days of the preliminary hearing, there is no requirement that the decision on the hearing be received within the 90–day period. People ex rel. Haskins v. Waters, 87 A.D.2d 657, 448 N.Y.S.2d 513;See People ex rel. Cambareri v. Scully, 80 A.D.2d 625, 436 N.Y.S.2d 69;People ex rel. Feldt v. Sheriff of Orange County, 79 A.D.2d 716, 434 N.Y.S.2d 249. The final revocation hearing in this case was scheduled and commenced on January 5, 2012, well within the 90–day time limit.
Executive Law Section § 259—i(3)(f)(i) permits an extension of the 90–day limit if a violator requests and receives any postponement of his revocation hearing, or consents to a postponed revocation proceeding initiated by the board, or if an alleged violator, by his actions otherwise precludes the prompt conduct of such proceedings. In the instant case, the final revocation hearing was adjourned several times for reasons chargeable both to the division of parole and petitioner. The petitioner is unable to establish any prejudice with regard to the delay, since the adjournments of the hearings were due at least in part, to issues he had consented to and his own conduct which prevented the court from proceeding. People ex rel Morant v. Warden, Rikers Island, 35 A.D.3d 208, 826 N.Y.S.2d 40, 41. Therefore the final revocation hearing is deemed to have been held in a timely manner in compliance with the statutory mandate.
ACCORDINGLY, after consideration of the foregoing, the applicable law, and due deliberation, it is hereby;
ORDERED, that the petition is denied in its entirety, and it is further
ORDERED, that the writ of habeas corpus is dismissed.
This constitutes the decision order of this court.