Opinion
No. 340911–2013.
06-27-2014
The PEOPLE of the State of New York ex rel. Timmy WALLACE, Warrant No. 641791 B & C # 241–13–09460, NYSID # 08735288L, Petitioner, v. WARDEN, Rikers Island Correctional Facility, and New York State Department of Corrections and Community Supervision, Respondents.
Simone Petromelis, Esq., New York, for Petitioner. Anna Hehenberger, Assistant Attorney General, New York, for Respondent.
Simone Petromelis, Esq., New York, for Petitioner.
Anna Hehenberger, Assistant Attorney General, New York, for Respondent.
Opinion
RICHARD L. PRICE, J.
By writ of habeas corpus submitted January 22, 2014, petitioner moved for an order vacating his parole warrant and releasing him from the custody of New York State Department of Corrections and Community Supervision (DOCCS or Respondent) on the basis that he is being illegally detained without probable cause in violation of Executive Law § 259–i(3)(c)(iv), Title 9 NYCRR 8003.3 and the Due Process Clauses of the Fourteenth Amendment of the United States Constitution and the New York Constitution, article I, § 6. By decision dated March 19, 2014, this court dismissed petitioner's writ. This expands that decision.
I. Background and Procedural History
On or about August 10, 2010, judgment was entered against petitioner in Supreme Court, New York County, convicting him of criminal sale of a controlled substance in the second degree (Penal Law § 220.41 ) and criminal possession of a firearm in the second degree (Penal Law § 265.03 ). Petitioner was sentenced to a determinate term of six years imprisonment, with an additional period of five years post-release supervision.
On or about June7, 2013, petitioner was conditionally released and scheduled to be supervised by DOCCS until June 7, 2018. In connection with his conditional release, petitioner signed a document entitled “Certificate of Release to Parole Supervision” (see Respondent's Exhibit A). Prior to petitioner's release, DOCCS informed him that his failure to abide by these conditions would result in the revocation of his parole. By signing this document, petitioner agreed to comply with the terms and conditions set forth in it, which included:
CONDITIONS OF RELEASE
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8. I will not behave in such 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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On August 9, 2013, petitioner was arrested in Bronx County after selling a quantity of heroin to an undercover officer. Upon being approached by the arresting officer, petitioner threw a loaded Byrco 9mm handgun to the ground and fled. Petitioner was apprehended and charged with criminal sale of a controlled substance in the third degree (PL 220.41) criminal sale of a controlled substance in the second degree (Penal Law § 220.39 ), criminal possession of a weapon in the second degree (PL 265.03), and resisting arrest (Penal Law § 205.30 ).
As a consequence of these events, DOCCS declared petitioner delinquent and issued a Violation of Release Report (VRR) charging petitioner with violating the Conditions of Release indicated above (see Respondent's Exhibit C). On September 23, 2013, DOCCS issued Parole Warrant No. 641791 (the warrant).
The following day, on September 24, 2014, DOCCS served petitioner with the Notice of Violation (Notice), the VRR, and notice of the preliminary hearing. Petitioner elected to have a Preliminary Parole Revocation Hearing (the hearing), which was scheduled for October 7, 2013 (see Respondent's Exhibit E).
The hearing commenced on October 7, 2013, but was subsequently adjourned until October 8, 2013, when the arresting officer, Detective Anthony Anderson, would be available (see Respondent's Exhibit F). The following day, Hearing Officer Sol Chamorro (HO Chamorro) conducted the hearing at the Rikers Island Judicial Center. Electing to proceed with VRR Charge # 3, PO Imafidon testified that she began supervising petitioner upon his release on June 7, 2013. According to PO Imafidon, petitioner was reporting as directed until his arrest (see Respondent's Exhibit H, minutes of Preliminary Hearing). Upon the conclusion of the hearing, HO Chamorro determined probable cause existed that petitioner violated Rule 8 of the Conditions of Release (see Respondent's Exhibits I and J [Preliminary Violation Hearing Decision and Summary, and Division of Parole Bureau Analysis, respectively] ).
II. Discussion
Habeas Relief
As a threshold matter, assuming this court found DOCCS's probable cause determination improper, which it was not, petitioner would not be entitled to immediate release. Habeas relief on parole revocation challenges is limited to circumstances where the parolee is in custody solely on the basis of the parole warrant (People ex rel. Brown v. New York State Div. of Parole, 70 N.Y.2d 391 [1987] ). Where a parolee is incarcerated on an unrelated matter, however, habeas relief cannot affect immediate release even if that matter was the initial basis for the parole warrant, or if notice of the alleged parole violation was defective (People ex rel. Townsend v. New York State Bd. of Parole, 97 A.D.2d 386 [1st Dept 1983] ). Thus, given that petitioner was arrested in August 2013, has pending felony and misdemeanor charges in Kings County, and has not posted bail, he is not currently being held solely on the basis of the parole warrant. As such, he is procedurally barred from bringing a habeas corpus petition (see People ex rel. Kaplan v. Commr. of Correction, 60 N.Y.2d 648 [1983] ).
Conditions of Parole Supervision
Parole is a conditional grant of liberty, i.e. a privilege that can only be given, or revoked, according to statute (see § 259). “The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence” (Morrissey v. Brewer, 408 U.S. 471, 477 [1972] ). To be clear, parole “deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observation of special parole restrictions” (Morrissey, 408 U.S. at 480). As such, a parolee has no “protected liberty interest in being free from special conditions” (Robles v. Williams, No. 02 Civ. 6102(PAC)(DCF), 2007 WL 2403154, at 4 (SDNY Aug. 22, 2007). In fact, a parolee is subject to any condition of parole provide such condition is “sufficiently clear to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly” (United States v. Simmons, 343 F3d 72, 81 [2d Cir2003] ).
Here, prior to his release in June 2013, petitioner certified that he read and understood the conditions of his release, and received a copy of them (see Respondent's Exhibit A). Certainly, then, petitioner was aware of the conditions of release to parole supervision. In fact, according to PO Imafidon, prior to his arrest petitioner was adhering to these conditions, particularly the obligation to regularly report to him. Petitioner's contention, then, that Condition of Release Rule Eight, which prohibits a parolee from behaving in a manner that subjects him to imprisonment for violating any law or threatens the safety and well-being of others was not “sufficiently clear” is unavailing. Petitioner read it, understood it, and signed a document agreeing to abide by it.
For this reason, it is untenable that petitioner was somehow unaware he had to comply with instructions and directives law enforcement officers. There is simply no rational argument that such condition is anything other than “sufficiently clear” to have provided petitioner with a reasonable opportunity to know that disobeying a law enforcement officer is prohibited. How he expects anyone, let alone this court, to believe he somehow did not know that engaging in a physical struggle with identifiable police officers attempting to subdue him before fleeing from them was prohibited is mystifying. Precisely as a consequence of this along with other alleged misconduct, PO Imafidon properly charged petitioner with violating the conditions of his parole under the warrant.
Probable Cause
Petitioner claims DOCCS failed to establish probable cause that he violated the Conditions of Release in an important respect. This court disagrees. Specifically, DOCCS must establish the existence of “probable cause to believe that the parolee has violated one or more conditions of his parole in an important respect” (see EL 259–i[3][c][iv] ). Moreover, the VRR is by no means an indictment, nor is it intended to serve as a substitute. Thus, DOCCS is under no obligation to prove each element of the charged violations (see People ex rel. Daniel v. Warden, Index No. 25202–09, at 2 [Sup Ct, Bronx County, 2009] ).
“While the revocation of parole requires that due process be afforded ... it is not the same as that required at a final hearing or a criminal trial” (People ex rel. Sean Garner v. Warden, Index No. 25469–09, at 7 (Sup Ct Bronx County, 2009) (Marcus, J.). Additionally, a preliminary parole revocation hearing is informal, thus only a minimal inquiry is necessary to determine whether there is probable cause to believe a parolee committed acts that constitute a violation of his parole (People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 31 [1973];People ex rel. Korn v. New York State Div. of Parole, 274 A.D.2d 439, 440 [2nd Dept 2000] ; People ex rel. Watson v. Commr. of New York City Dept. of Correction, 149 A.D.2d 120, 125 [1st Dept 1989] ). Indeed, the court's power to review a hearing officer's or administrative law judge's decision is limited to determining whether there was sufficient evidence in the record to support a finding of probable cause and whether procedural safeguards were followed (see EL 259–i[3][c] [viii]; People ex rel. Wallace, 67 A.D.2d 1093, 1094 (4th Dept 1979] ). “[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” (People v. Rennie, 190 A.D.2d 830 [2nd Dept], lv denied 81 N.Y.2d 975 [1993];People v. Machia, 96 A.D.2d 1113 [3rd Dept 1983].
DOCCS presented sufficient evidence to establish probable cause that the defendant had violated one or more conditions of his parole in an important respect. As noted above, prior to being released petitioner certified that he read and understood the conditions of his release. Yet, on August 8, 2013 Petitioner was arrested and charged, among other things, with resisting arrest. Detective Anderson testified at the hearing that petitioner engaged in a physical struggle with Detective Smith, after which petitioner fled (see Exhibit H). Furthermore, Detective Anderson pursued petitioner in a vehicle. Upon and apprehending the petitioner, Detective Anderson identified himself as a law enforcement officer and instructed him to stop running, a command petitioner ignored (see Exhibit H). Petitioner continued to flee and was eventually apprehended on Southern Boulevard between 180th Street and 181st Street. (see Exhibit H). Viewing such circumstances in the context of the imposed conditions, HO Chamorro's finding reasonable cause that petitioner committed a parole violation of Conditional Release Rule Eight in an important respect is entirely supported by the record.
Petitioner's claim that because he was never criminally charged with resisting arrest, it cannot serve as the basis for a violation of a release condition. Petitioner is wrong, it can. Nowhere in the Conditions of Release is there any requirement that petitioner be criminally charged before such conduct may form the basis for a violation of parole. To suggest otherwise is absurd. Accordingly, HO Chamorro's finding that there was probable cause to believe petitioner had violated at least one of the conditions of his release to parole supervision was well-supported.
III. Conclusion
Based on the reasons stated above, this court dismisses petitioner's writ in its entirety. Hearing Officer Chamorro correctly found probable cause to believe that the parolee has violated one or more conditions of his parole in an important respect. Accordingly, petitioner's preliminary hearing comported with Executive Law § 259–i(3)(c)(iv), Title 9 NYCRR 8003.3 and the Due Process Clauses of the Fourteenth Amendment of the United States Constitution and the New York Constitution, article I, § 6. Petitioner's habeas petition is therefore 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 petitioner at his place of incarceration.