Opinion
No. 340385–2012.
2013-01-9
The PEOPLE of the State of New York ex rel. Owen WELCH, Petitioner, v. WARDEN OF RIKERS ISLAND CORRECTIONAL FACILITY, and New York State Department of Corrections and Community Supervision, Respondents.
Percival A. Clarke, Esq., Bronx, for Petitioner. Eric T. Schneiderman, Attorney General by Anne M. Hehenberger, Esq., Assistant Attorney General, New York, for Respondent Department of Corrections.
Percival A. Clarke, Esq., Bronx, for Petitioner. Eric T. Schneiderman, Attorney General by Anne M. Hehenberger, Esq., Assistant Attorney General, New York, for Respondent Department of Corrections.
DOMINIC R. MASSARO, J.
Petitioner Owen Welch (hereinafter, “Petitioner”) seeks a writ of habeas corpus directed to the Warden of Rikers Island Correctional Facility and the New York State Department of Corrections and Community Supervision (hereinafter DOCCS). Petitioner asks for the writ to vacate a pending warrant (# 630678) issued and lodged based upon his claim that Respondents illegally detained him by failing to transfer him for drug rehabilitation, more particularly, failure to transfer him to the Willard Drug Treatment Program in Seneca County.
Further, Petitioner argues DOCCS violated its own regulations (namely, 9 NYCRR § 8005.20) by failing to enroll him in the Willard Program within a reasonable time period, thereby likely causing him to be incarcerated beyond the time assessment agreed upon in his plea bargain at a final parole revocation hearing. At this hearing, Petitioner pled guilty to a parole violation set forth in a Violation of Release Report. He was ordered held for a time assessment of twelve months or, alternatively, 90 days at a treatment program.
When Petitioner filed the instant amended petition, more than a month had passed since the final revocation hearing and Petitioner was still not declared “state ready” for transfer to Willard or to any other facility. As the Court understands, Petitioner feels delay in transfer to the rehabilitation program means he would serve more than the ninety-day period the hearing officer approved for him in the plea bargain. Stated another way, Petitioner fears his liberty interests would be damaged because he would be serving time in excess of the amount agreed between the parties at the final parole revocation hearing.
Background
Petitioner was originally convicted in 2009 in Kings County of Attempted Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) for which he was sentenced to an indeterminate maximum prison term of up to two years and two years post-release supervision. Petitioner's release to parole supervision occurred on November 26, 2010, after he agreed to conditions contained in the Certificate of Release to Parole Supervision (Exhibit A). DOCCS retains supervisory jurisdiction over Petitioner until November 26, 2013.
On January 24, 2012, Petitioner was arrested in Kings County for weapon possession and violating curfew (Exhibit B). DOCCS declared Petitioner delinquent for violating four violations of release conditions
and a parole warrant was to be issued and lodged against him on February 7, 2012. Respondents served Petitioner with the Violation of Release Report and Notice of Violation on February 9, 2012 (Exhibits B and D).
The parole violations of Petitioner's Conditions of Release (Exhibit A) occurring on January 24, 2012 in Kings County. DOCCS charged Petitioner violated Condition No. 8 twice by threatening a third party by displaying a firearm in a threatening manner and by possession of a firearm. Petitioner also violated Condition No. 13 by his failure to honor curfew and Condition No. 9 by possessing a firearm (Exhibit B).
The parole violations charged included four violations of Petitioner's Conditions of Release (Exhibit A)
that DOCCS maintains occurred on January 24, 2012 in Kings County. Petitioner waived his preliminary hearing and a Final Parole Revocation Hearing occurred on April 9, 2012. The parties agreed Petitioner received a twelve-month time assessment with alternative substance abuse treatment to be served within ninety days. The parole proceeding was settled by plea bargain with Petitioner pleading guilty to curfew violation and the remaining charges were dismissed with prejudice (Exhibit E).
Condition No. 8 requires that Petitioner will not behave in such a manner as to violate any law or threatened his safety or the safety of any other person. Condition No. 9 barred Petitioner from possessing any firearm, and Condition No. 13 requires that Petitioner must follow instruction of his parole officer.
Subsequently, DOCCS found Petitioner “state ready” on June 6, 2012, but the City Department of Correction did not make that determination until June 18, 2012. Respondents reported to the Court that Petitioner was to be transferred to a drug treatment program on or about June 18, 2012. In fact, Petitioner was transferred to Willard on that date and the parties expected his release on or about October 30, 2012, if he successfully completed the rehabilitation program. In fact, Petitioner was released on November 1, 2012.
Petitioner's Position
Petitioner argues for release because he was not transferred at a time that would avoid his being held beyond that time imposed at the April 9, 2012 final parole revocation hearing, in the event he successfully completed drug rehabilitation. Had Petitioner been timely transferred, he claims, he would be eligible for release on or about July 9, 2012.
According to Petitioner, his continued incarceration while awaiting transfer to Willard is a violation of 9 NYCRR § 8005.20
and requires that the Court must order Petitioner's immediate release. Petitioner maintains the hearing officer determined that the additional year alternative imprisonment was too harsh a sentence because he limited the drug treatment period to ninety days (see generally, People ex rel. Morejon v. New York State Bd. of Parole, 183 Misc.2d 435, 706 N.Y.S.2d 566 [Sup.Ct. Bronx 1999] ). As raised in the amended petition, Petitioner rejects DOCCS' claim delay in caused by New York City's Department of Correction's actions. Further, Petitioner says the remedy, if there is a violation, is the parole warrant's vacatur and his immediate restoration to parole supervision, because failure to do so denies him of the benefit of his plea agreement.
Petitioner refers to 9 NYCCR § 8006.20 in his amended petition. He does not specify what portion of the regulation he alleges was violated.
DOCCS' Position
Simply stated, DOCCS wants the writ petition dismissed because Petitioner was already transferred to Willard and he is presently undergoing appropriate treatment, thereby mooting any habeas relief in this case. Even if time awaiting and undergoing treatment exceeds twelve months (which is not the case here), DOCCS says no requirement exists that the parole warrant be vacated (see, Executive Law 259–i). Even if Petitioner were to serve longer than the maximum sentence, habeas corpus remains inappropriate because such imprisonment merely creates eligibility for re-release consideration and not automatic release (see generally, People ex rel. Grimmick v. McGreevy, 141 A.D.2d 989, 531 N.Y.S.2d 39 [3rd Dept.1988] ). Further, no violation occurred because Petitioner would only have been restored to parole supervision, conditioned upon completion of the mandatory drug rehabilitation program. Therefore, if the Court must find Petitioner's transfer was wrongly delayed, case law only supports a writ to the extent that a petitioner must be transferred to an appropriate facility (see, People ex rel. Morejon v. New York State Bd. of Parole, supra ). Finally, DOCCS argues that, under these circumstances, because Petitioner was transferred to Willard, the writ petition is moot.
Legal Discussion
On the present record, the Court denies Petitioner's writ of habeas corpus in its entirety. Neither the Warden nor DOCCS illegally detained Petitioner especially because DOCCS was awaiting the City's conclusion concerning Petitioner's “state ready” status (see generally, People ex rel. Carillo v. Basilone, 183 Misc.2d 707, 705 N.Y.S.2d 165 [Sup Ct. Bronx 2000] ).
The legality of an extended period of pre-Willard incarceration is determined upon facts or lack thereof bearing upon the reasonableness of the period of incarceration in the particular case (see, People ex rel. Woelfle v.Poole, 15 Misc.3d 1101A [Sup.Ct. Seneca 2007] ). In this instance, approximately seventy days transpired between the acceptance of the guilty plea at the Final Revocation Hearing (Exhibit E) and Petitioner's transfer to Willard.
Our courts have on occasion ruled that a parolee who is permitted to receive treatment at Willard Drug Treatment Center should be transferred within 40 days from the day he received his final parole revocation determination absent exigent circumstances (see, People ex rel. Woelfle v. Poole, 15 Misc.3d 1101A [Sup.Ct. Seneca 2007] ) (see also, Nelson v. State of New York, 20 Misc.3d 1125A [Ct. Of Claims 2008] ). But forty days is not a bright line test and other courts approved different periods. In the instant case, the record shows in excess of forty days expired from the final parole revocation hearing. This does not require the warrant's dismissal.
Confinement at Willard is not equivalent of a determinate sentence in a correctional facility (see, People ex rel. Gonzalez v. Warden, Rikers Island Correctional Facility and NYS Div. of Parole, Index No. 51239–2005 [Sup.Ct. Bronx 2005] ). Indeed, by statutory definition, a drug treatment facility is not a correctional facility (see, Corr. L § 70[1][c] and § 2[20] ). Participation in a drug treatment program, such as Willard, can be viewed actually as a condition of a parolee's parole restoration (see, People ex rel. Gonzalez v. Warden, Rikers Island Correctional Facility and NYS Div. of Parole, supra ).
State Ready Status
Petitioner argues his “state ready” status is critical to determining his status in this case. Respondents counter that “state ready” began only when New York City's Correction Department advised DOCCS that Petitioner was ready for transfer because a pending criminal matter was disposed (see, Ayers v. Coughlin, 72 N.Y.2d 346 [1988] ). In this case, DOCCS argues Petitioner cannot be regarded as “state ready” when he was subject to further criminal prosecution pending after the Final Parole Revocation Hearing. Therefore, calculation did not begin at the hearing date.
While it is clear that any time period used by the court to determine reasonable time in which Petitioner must be transferred to Willard is an equitable remedy fashioned by the Court and subject to special scrutiny as to reasonableness in light of the surrounding facts (see generally, People ex rel. Woelfle v. Poole, supra ), the fact Petitioner's criminal matter remained under active judicial review after the Final Parole Revocation Hearing persuades the Court that Petitioner is not entitled to his requested relief here. Likewise, the fact that Petitioner is at Willard now moots his relief.
According to DOCCS' internet records, Petitioner was released from custody on November 1, 2012, having apparently successfully completed the Willard program.
WHEREFORE, based upon the foregoing,
The Court read the following papers in deciding this motion: (1) Order to Show Cause; Petitioner's Affidavit in Support of Order to Show Cause with attachments, (2) Verified Amended Petition for a Writ of Habeas Corpus of Percival Clarke, Esq., (3) Affirmation in Opposition to Verified Amended Petition for a Writ of Habeas Corpus with Exhibits A to I, and (4) DOCCS' on lone inmate lockup.
ORDERED that the branch of the petition seeking to vacate Warrant # 630678, issued and lodged against Petitioner Owen Welch, is DENIED, and it is
ORDERED that the branch of the petition seeking to determine whether the Warden and DOCCS are illegally detaining Petitioner by failing to transfer him to Willard Drug Treatment Center, is DENIED; and it is further
ORDERED that the branches of the petition, seeking to inquire into the legality of Petitioner's detention, seeking to cancel with prejudice the parole delinquency declared against Petitioner, and requiring Petitioner's release from custody, are DENIED.
The foregoing constitutes the decision and order of this Court.
Dated: Bronx, New York