Opinion
51618/07.
Decided January 3, 2008.
Petitioner moves by writ of habeas corpus alleging that he was not allowed to speak at his final revocation hearing and that he was denied effective assistance of counsel.
The relevant facts are as follows. On February 16, 1994, petitioner was convicted of robbery in the second degree in New York County Supreme Court (Galligan, J.) and sentenced to an indeterminate prison term of ten years to life.
On November 21, 2006, petitioner was released from Queensboro Correctional Facility to parole supervision. One of the conditions of petitioner's release was that he reside at Bellevue Men's Shelter located at on East 30th Street in Manhattan. A second condition of his release was that he report to his parole officer within 24 hours of his release.
On December 8, 2006, parole warrant number 468703 was issued charging petitioner with two violations: (1) failing to report within 24 hours of his release from the Queensboro Correctional Facility; and (2) failing to arrive at his approved residence, the Bellevue Men's Shelter. The warrant was not lodged against petitioner until April 15, 2007. The delay in executing the warrant was due to petitioner's absconding.
On April 26, 2007, petitioner's preliminary parole revocation hearing was held. Hearing Officer Audrey Crawford made a finding of probable cause.
Petitioner's final parole revocation hearing was held on June 7, 2007 before Administrative Law Judge John Cox. Petitioner was represented by Legal Aid attorney David Moore, Esq. At the beginning of the hearing, following a reading of the two charges contained in the Violation of Release Report, Mr. Moore entered a "not guilty" plea to both charges on petitioner's behalf.
The sole witness to testify at the final hearing was petitioner's parole officer, Parole Officer Covington. Parole Officer Covington testified that petitioner failed to go to his approved residence at the Bellevue Ben's Shelter after his release from custody and failed to report to parole within 24 hours.
After petitioner's attorney concluded his cross-examination of Parole Officer Covington, petitioner asked if he could "speak his mind" (H:13). The Administrative Law Judge responded, "no," and asked petitioner whether he had a question for the parole officer (H:14). After petitioner responded that he wanted to ask the parole officer something, the Administrative Law Judge directed petitioner to "have a seat" and consult with his attorney (H:14). The record reflects that shortly thereafter petitioner became agitated, whereupon the following transpired (H:14-15):
THE COURT: No, you're going to be quiet right now or the C.O.'s will be brought in here and
PETITIONER: Listen.
THE COURT: You'll be removed.
PETITIONER: Let me let me get out of here then. I don't care, man. You ain't doing me no favor. Excuse me, Sir.
THE COURT: You're not doing yourself any favors.
PETITIONER'S ATTORNEY: I think you should probably stay here for the rest of your hearing.
PETITIONER: Excuse me.
THE COURT: All right. Let the record reflect that the parolee has decided to just walk out of the hearing.
After determining that petitioner's attorney had no additional questions for the witness, the Administrative Law Judge took argument from both sides. Petitioner's attorney asked for a lenient time assessment in the event that the court sustained the charges. The Administrative Law Judge found petitioner guilty of both charges, revoked his parole, and imposed a delinquent time assessment of twelve months.
By petition for a writ of habeas corpus submitted to this Court on October 31, 2007, petitioner alleges that he was not permitted to speak at the final hearing and that he was denied effective assistance of counsel. In his amended petition dated September 8, 2007, petitioner also asserts that he was not sworn in at the hearing and that he was removed from the hearing when he attempted to say a few words. In his reply papers, petitioner claims that he filed an administrative appeal, but did not perfect it because "the Division of Parole ignored my request for assistance of council (sic) and all paperwork relevant to my case" (Petitioner's reply papers at 2).
Petitioner made these same allegations in an Article 78 petition filed on or about June 23, 2007under Index No. 51618/07. The instant writ of habeas corpus, filed under Index No. 250528/07, was consolidated with the article 78 petition by Order dated October 17, 2007 (Adler, J.).
CONCLUSIONS OF LAW
Habeas corpus relief is inappropriate in cases where the claimed errors could have been addressed in the course of an administrative appeal ( see People ex rel. Epps v Warden, AD3d [1st Dept. Dec. 18, 2007]; People ex rel. Charleston v New York State Div. of Parole, 280 AD2d 348 [1st Dept. 2001]). In the case at bar, petitioner's ineffective assistance of counsel claim and the errors he alleges were committed at the hearing could have been raised in an administrative appeal ( see People ex rel. Davis v New York State Bd. of Parole, 263 AD2d 706, 707 [3rd Dept. 1999]; lv denied 93 NY2d 819; People ex Rel. Vazquez v Travis, 236 AD2d 745 [3rd Dept. 1997], lv denied 91 NY2d 847). It does not avail petitioner to argue that the alleged errors are of constitutional dimension ( see People ex rel. Bratton v Mellas , 28 AD3d 1207 [1st Dept. 2006], lv denied 7 NY3d 705). It is undisputed that petitioner never perfected his administrative appeal ( see People ex rel. De Marta v Sears , 31 AD3d 918 [3rd Dept. 2006]). Accordingly, petitioner's failure to exhaust his administrative remedies warrants dismissal of the proceeding ( see People ex rel. Epps v Warden, supra; People ex rel. Charleston v New York State Div. of Parole, supra; see generally Matter of Carter v State of New York, 95 NY2d 267, 270) [2000]).
In any event, even if dismissal of the proceeding were not warranted on procedural grounds, the record reflects that petitioner received effective assistance of counsel at the hearing and that his due process rights were protected ( see People ex rel. McGee v Walters, 62 NY2d 317). Contrary to petitioner's assertion, his Legal Aid attorney cross-examined the witness who testified at the hearing and represented petitioner competently. Nor was petitioner precluded from asking the witness a question; the Administrative Law Judge merely insisted that the question be posed by petitioner's attorney, if appropriate, after discussion with petitioner. The record also refutes petitioner's contention that he was forcibly removed from the hearing. To the contrary, the record indicates that petitioner left the hearing of his own volition before it concluded, notwithstanding his attorney's advice that he stay until its conclusion. Indeed, in the Administrative Law Judge's written determination, he noted that petitioner "stormed from the room" (Parole Revocation Decision Notice at 3).
Finally, while petitioner does not challenge the sufficiency of the evidence presented at the hearing, the Court notes that the Division proved by a preponderance of the evidence that petitioner violated the terms of his release (Executive Law § 259-i[f][viii]). Thus, there is no basis for disturbing the determination revoking his parole.
Accordingly, the petition is dismissed in its entirety.
This constitutes the decision and order of the Court.