Opinion
Index No. 260221-19
06-17-2019
THE PEOPLE OF THE STATE OF NEW YORK ex rel KIRK STEVENSON, B&C # 895-19-00196 NYSID # 05326021-R WARRANT # 805508 Petitioner, v. WARDEN, Anna M. Kross Center, and NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION Respondents.
Caitlin Miller, Esq Elon Harpaz, Esq. Attorney for Petitioner David T. Cheng, Esq. Assistant Attorney General Attorney for Respondent
Unpublished Opinion
Writ of Habeas Corpus
Caitlin Miller, Esq Elon Harpaz, Esq. Attorney for Petitioner
David T. Cheng, Esq. Assistant Attorney General Attorney for Respondent
DECISION
MIRIAM R. BEST, ACTING SUPREME COURT JUSTICE
For the reasons that follow, the parole warrant is vacated and Petitioner is ordered to be released and restored to parole supervision provided that no other valid hold exists.
Background
Petitioner Kirk Stevenson (hereinafter "Petitioner") was convicted of Robbery in the First Degree and was sentenced on January 18, 1995, to twelve and one-half to twenty-five years' imprisonment (DOCCS Exh A). On June 17, 2018, Petitioner was released to parole supervision (id.).
On December 24, 2018, Petitioner was declared delinquent and charged with violating the conditions of his release (DOCCS Exh B). Specifically, the Violation of Release Report (VORR) alleges that Petitioner changed his residence without notifying his parole officer, failed to attend his intake appointment for substance abuse and anger management treatment, failed to make his parole office visit on January 8, 2019, and violated his curfew (id.). Parole warrant number 805508 was issued on January 10,2019 and lodged on February 12,2019 (Resp Aff in Opp ¶ 9). Petitioner was served with a copy of the VORR on February 12,2019 (id. ¶ 10). On February 19,2019, Petitioner was served with a Notice of Violation and indicated that he "wish[ed] to have a preliminary hearing" by checking the appropriate box and signing the document (Pet Exh B). The preliminary hearing was scheduled for February 26, 2019 (id.).
On February 26, 2019, Petitioner was not produced for the hearing (DOCCS Exh E p2). Hearing Officer Staniszewski made the following record:
I have here an undelivered form in the name of Kirk Stevenson with NYSID number as stated in the record. It says refused to appear. Refused to go to RIJC. He refused to sign. It's signed by Captain Williams, shield 1836, and CO Randolph, it looks like 10155.
Based on the notice of violation which Mr. Randall [sic in original] signed that states:
"All persons charged with a violation of parole are required to be present at all proceedings regarding that violation of community supervision which are authorized by the Board of Parole. Any voluntary failure on your part to be present at any of these proceedings may result in a finding that your failure to appear was a voluntary, knowing and intelligent waiver of your right to appear. Should such a finding be made, a hearing in absentia can be held and a final determination be made regarding the charges pending against you including, if necessary, a time assessment because of the violation of community supervision."
This form does conform to the standard for a voluntary, knowing and intelligent waiver of his right to appear, and as stated on the record, a hearing in absentia will be held.(Id. pp 2-3.)
Defense counsel objected to proceeding without Petitioner, arguing that it was not a "bona fide refusal" because Petitioner did not sign the refusal (id. p 3). Defense counsel asked that the case be adjourned to the following day, February 27, so that Petitioner could appear and noted that the 15 days permitted to conduct the hearing had not yet lapsed (id. p 4). When that request was denied, defense counsel asked that the case be adjourned to the following day and that the time be "charged to the [Petitioner]" (id.). That request was also denied. The preliminary hearing went forward and the hearing officer found that Respondent had established probable cause to believe that Petitioner violated rule number two as alleged in charge number three (id. p 9).
Petitioner's final parole revocation hearing was held on April 15, 2019 (Resp Aff in Opp ¶ 13). Petitioner admitted his guilt and the Administrative Law Judge imposed a time assessment of 12 months or, in the alternative, a 90-day drug treatment program (id. ¶ 13).
Respondents do not argue that Petitioner's claims were rendered moot by his admission of guilt at the final hearing. See People ex rel Chavis v. McCoy, 236 A.D.2d 892, 892 (4th Dept 1997) (claims regarding the propriety of petitioner's preliminary parole revocation hearing '"subsumed by revocation of petitioner's parole'"). Accordingly, this court will not consider mootness in resolving the writ.
The Parties' Contentions
Petitioner claims that his right to due process was violated because the preliminary hearing was held in his absence in violation of Executive Law § 259-i(3)(c)(iii). He argues that the evidence was insufficient to support a conclusion that he knowingly, intelligently and voluntarily waived his right to be present at the preliminary hearing (Pet Aff If 18). He claims that the undelivered form (UDF) was not properly filled out and he did not sign it. Moreover, in his reply brief, Petitioner submitted a sworn statement asserting that the night before his preliminary hearing was scheduled, he was suffering from stomach pain and asked to see a doctor (Pet Reply Brief Exh C ¶ 5). "On the morning of February 26, 2019, a CO escorted me to the medical department so that I could see a doctor. I asked the CO about the preliminary hearing. He told me that after my appointment, I would be placed on the bus to go to writ court for my preliminary hearing." But after his appointment ended, Petitioner was told that the bus had already left for court and he would have to return to his housing area (id. ¶¶ 7, 8). Petitioner states that he was never presented with a UDF, never refused to sign any such form and never refused to go to "parole court" (id. ¶¶11, 12).
Respondent disputes Petitioner's legal arguments and seeks an evidentiary hearing. Respondent argues that where a Petitioner refuses to sign a UDF two corrections officers must sign the form: the one who prepared and signed the form and "a corroborating signature from a supervisor" (DOCCS Exh G, p3; Resp Aff in Opp ¶15). Respondent claims that here, this requirement is satisfied by the signatures of Captain Williams and Officer Randolph (id. ¶ 44). Yet Respondent also concedes that the Attorney General's office sought declarations from these officers and was told on April 11, 2019, that the "witnesses did not recall this particular refusal" (id. ¶12). The Attorney General's office subsequently requested "further investigation into the City Respondent Warden witness' standard procedures and if they were followed" (id.). Respondent also concedes that as of May 17,2019, the witnesses had declined to sign an affidavit regarding whether the standard procedures were followed (id.). Accordingly, Respondent requests an evidentiary hearing to "assess the veracity of Petitioner's claim that he did not actually refuse, and the City Respondent Warden witnesses should be subpoenaed to testify with City Respondent Warden ordered to participate" (id. ¶ 16). Finally, Respondent claims that even if this court holds that Petitioner was denied due process at the preliminary hearing, the proper remedy is to grant him an new preliminary hearing (id. ¶ 48).
Analysis
"A parolee's right to be present and heard at a parole revocation hearing is a fundamental due process right (See Morrisey v. Brewer, 408 U.S. 471,488-489 [ 1972])." People ex rel Darren Smith v. Warden, Rikers Island Correctional Center, and N.Y.S. Department of Corrections and Community Supervision, Index No. 340496-2016, p. 4 (Sup Ct, Bronx County November 30,2016) (Boyle, J.) (Respondent's Exh H). Therefore,
[a] parole revocation hearing may not be held in absentia unless the parolee voluntarily, knowingly and intelligently waives his right to be present. (People ex rel Wyche v. NYS Div of Parole, 66 A.D.3d 541, 542 [1st Dept 2009]). Moreover, the decision to proceed in absentia may not be based on hearsay information that a parolee intentionally refused to attend the hearing. (People ex rel McKay v Sheriff of County of Rensselear, 152 A.D.2d 786, 787 [3d Dept 1989] [citing People ex rel Griffin v Walters, 83 A.D.2d 618, 619 [2d Dept 1981]], appeal denied, 74 N.Y.2d 616]). Finally, any ambiguities or uncertainties as to whether there was a knowing, intelligent, and voluntary waiver of the right to be present must be resolved in his favor. (See Johnson v Zerbst, 204 U.S. 458, 464 [1938]).People ex rel Aolonio Abreu v. Warden, Anna M. Kross Center; New York State Department of Corrections and Community Supervision, Index Number 250516-17, p 2 (Sup Ct, Bronx County December 22, 2017) (Clancy, J.) (Reply Brief Exh A). The proponent of the waiver, in this case Respondent, must demonstrate prima facie that Petitioner made such a waiver. See, People ex rel Melendez v. Warden of Rikers Island Correctional Facility, et al, 214 A.D.2d 3 01,3 02 (1st Dept 1995) ("the proponent of the waiver ... must initially establish that the waiver was in fact made."). For the reasons that follow, Respondent has failed to meet its burden.
It has been held that an Undelivered Defendant Form signed by a parolee and properly witnessed and dated by a correction officer on the date of the scheduled revocation hearing and indicating that parolee refused to appear at the hearing without giving a reason may constitute sufficient evidence of a knowing and intelligent waiver by
the parolee of the right to be present at the hearing [citations omitted]. ... The court notes that in factual scenarios such as here, where it is alleged that a parolee voluntarily chooses not to attend a preliminary hearing and then refuses to sign an undelivered defendant form, there is a further due process requirement of a countersignature by a second correction officer-witness in addition to the officer who prepares and signs the form.People ex rel Darren Smith v. Warden, et al, supra, pp. 4-5. Here, the UDF contains two names, Captain Williams and CO Randolph. On its face, the UDF appears to comply with the requirement of a second signature when a parolee refuses to sign (DOCCS Exh G [DOC Operations Order p 3]).
Petitioner's claim that the form is not properly filled out because neither Captain Williams nor CO Randolph included his or her first name and CO Randolph did not sign the document (Pet Reply Aff ¶ 8) is unavailing. See People ex rel Sanchez v Warden, Index No. 340574-2017 (Sup Ct, Bronx County April 23, 2018) (Adler, J.) (UDF before hearing officer complied in all "material respects" with procedures to be followed when inmate refuses to sign UDF; where officer who signed UDF provided last name, rank and shield number, due process was satisfied).
Respondent argues that a UDF completed in accordance with the NYC DOC Operations Order Number 13/87 (DOCCS Exh G) is sufficient to establish a knowing, voluntary and intelligent waiver of Petitioner's right to be present at the preliminary hearing. See People ex rel Moore v. Warden, Index No. 340383-17 (Sup Ct, Bronx County March 23,2018) (Adler, J.) (hearing officer properly relied on UDF as evidence that Petitioner voluntarily and knowingly refused to appear at hearing, where UDF complied in all material respects with NYC DOC Operations Order 13/87); People ex rel Sanchez v Warden, Index No. 340574-2017 (Sup Ct, Bronx County April 23, 2018) (Adler, J.) (to the same effect). However, Respondent also argues that "while Petitioner's legal arguments could be denied on this basis alone, an evidentiary hearing should be conducted" (Resp Aff in Opp¶¶16).
In some circumstances, a properly completed UDF may provide sufficient evidence of a knowing, voluntary and intelligent waiver of Petitioner's right to be present at a preliminary parole revocation hearing. Here, however, Petitioner has provided a sworn statement raising a genuine issue of fact surrounding the circumstances of his alleged refusal. Ordinarily, this would lead to an evidentiary hearing, as Respondent requests, but Respondent has all but conceded that it could not prevail at a hearing, because the witnesses do not recall what happened and have refused to acknowledge in writing that they followed the standard procedures. Under these circumstances, given "the strong presumption against the waiver of a constitutionally guaranteed due process entitlement," Respondent "has not come forward with adequate prima facie evidence of the waiver," People ex rel Melendez v. Warden, 241 A.D.2d at 302.
Contrary to Respondent's assertion that the proper remedy if Petitioner's right to be present was violated should be a new preliminary hearing, it is instead to vacate the warrant and restore Petitioner to parole. People ex rel Melendez v Warden, 214 A.D.2d at 3 03; see also Matter of Wyche v. New York State Division of Parole, 66 A.D.3d 541 (1st Dept 2009) (proper remedy for erroneously holding final hearing in the absence of both petitioner and counsel is a restoration to parole status).
Conclusion
For the reasons set forth above, the writ of habeas corpus is sustained. The parole warrant is vacated and Petitioner is ordered to be released and restored to parole supervision provided that no other valid hold exists.
This constitutes the decision and order of this Court.