Opinion
No. 6152–12.
2012-05-29
In the Matter of the Application of Santinarra SEALEY 07–B–3632, Petitioner, v. Andrea EVANS, Chairwoman New York State Board of Parole, Respondents.
Santinarra Sealey, Malone, Self-represented petitioner. Eric T. Schneiderman, Attorney General of the State of New York by Keith A. Muse, Esq., Assistant Attorney General, Albany.
Santinarra Sealey, Malone, Self-represented petitioner. Eric T. Schneiderman, Attorney General of the State of New York by Keith A. Muse, Esq., Assistant Attorney General, Albany.
MICHAEL C. LYNCH, J.
Petitioner is an inmate who commenced this CPLR Article 78 proceeding to challenge respondent's determination to revoke his parole. Respondent opposes the petition on the ground that it fails to state a cause of action.
In November, 2007, petitioner was sentenced to a determinate term of five years with five years post release supervision following his plea of guilty to second degree robbery.In June 2011, petitioner was released to parole supervision subject to certain Special Conditions of Parole that he signed on June 13, 2011 (Exhibit D). On July 7, 2011, he was declared delinquent of his parole and was served a Notice of Violation charging him with violating the conditions of his release because he (1) operated a motor vehicle; (2) was outside of his residence during curfew hours; (3) beat a woman “about the face”; (4) dragged her by her hair; and (5) forced her into a car, refused to let her out, and beat her, resulting in his arrest.At the final parole revocation hearing, petitioner pled guilty to the curfew violation. After the hearing, the Administrative Law Judge determined that petitioner was guilty of the remaining four charges. After an appeal, the respondent's Appeals Unit affirmed the Administrative Law Judge's determination and dismissed petitioner's appeal.
In this CPLR Article 78 proceeding, petitioner contends that (1) he was denied his right to counsel (Point One); (2) he was not afforded due process because the evidence established that he was not guilty of the asserted charges (Point Two); (3) the Administrative Law Judge abused his discretion because he refused to consider certain purportedly exculpatory evidence (Point Three).
A parolee has a State constitutional and statutory right to be represented by counsel at a final parole revocation hearing (People ex. rel. Donohoe v. Montanye, 35 N.Y.2d 221 [1974];Executive Law § 259–i(3)[f](v)).This does not mean that an indigent has a right to assigned counsel of his or her choice; rather, such a party must support a request for new counsel with demonstrable “good cause” (People v. Sawyer, 57 N.Y.2d 12, 18–19 [1982] ). Such good cause for substitution may exist where there is a demonstrated “conflict of interest or other irreconcilable conflict with counsel” (People v. Dunton, 19 A.D.3d 808, 808–809 [2005] ).These factors are not exhaustive; rather, as the Court of Appeals explained, it is a “case-specific” and discretionary determination that must be made following consideration of, “the timing of the defendant's request, its effect on the progress of the case and whether present counsel will likely provide the defendant with meaningful assistance” (People v. Linares, 2 N.Y.3d 507, 510–511 [2004] ).
Although a Court is obligated to evaluate a request for new counsel, it is well-settled that a party's request for new counsel should not be “casually granted” (Sawyer, Supra, at 19, 453 N.Y.S.2d 418, 438 N.E.2d 1133). Indeed, “a court's duty to consider [a substitution request] is invoked only where a defendant makes a seemingly serious request' “ (People v. Porto, 16 N.Y.3d 93, 99–100, 917 N.Y.S.2d 74, 942 N.E.2d 283 [quoting People v. Sides, 75 N.Y.2d 822, 824 [1990]] ). Accordingly,
“... it is incumbent upon a defendant to make specific factual allegations of serious complaints about counsel'. If such a showing is made, the court must make at least a minimal inquiry' and discern meritorious complaints from disingenuous applications by inquiring as to the nature of the disagreement or its potential for resolution' “
( Id. at 100, 552 N.Y.S.2d 555, 551 N.E.2d 1233 [cit. om.] ). If an inquiry is required but not made, a new hearing is warranted because, “....the constitutional guarantee to be represented by counsel of one's own choosing is a fundamental right and the doctrine of harmless error is inapplicable upon a showing that such right has been abridged” (People v. Arroyave, 49 N.Y.2d 264, 273 [1980] ).
A parolee may waive his or her right to counsel, provided that the record indicates that the waiver was “knowingly, intelligently and voluntarily made” (People ex. rel. Perez v. Warden, 139 A.D.2d 477 [1988] ). In order for a waiver to be effective, a hearing officer must make a “precautionary inquiry” to “warn [petitioner] of the risks inherent in representing himself' or apprise him of the value of counsel' “ ( Perez, Supra [cit. om.] ). Once a party elects to proceed without counsel, a judge may appoint a “stand by” counsel to assist if and when necessary (People v. Mirenda, 57 N.Y.2d 261, 266 [1982] ).
Here, at the final revocation hearing held on October 5, 2011, petitioner was represented by counsel. When asked whether he had, “an adequate amount of time to discuss [petitioner's] options” his counsel advised the Administrative Law Judge that he and the petitioner were “having a strong sense of disagreement” and that he was, “not sure if [petitioner] wanted [him] to continue as his attorney” (Exhibit G, p. 4). After an off-the-record conversation, the Administrative Law Judge went back on the record and stated that during the course of the “extensive off the record discussion”, petitioner “indicated to [the Administrative Law Judge] off the record that [he] did not want [his counsel] to proceed as [his] lawyer” (Id.). This exchange followed:
Administrative Law Judge: You understand that then you will be proceeding today acting as your own attorney because as I told you off the record, I will now state on the record, there will be no adjournment. So you are—I urge you to re-consider and allow Mr. Boeck to continue as your lawyer because otherwise you will have to act as your own lawyer and you will be proceeding at your own peril, is that what you want to do?
Petitioner: ... the only thing I want is another lawyer because I feel that he's not working hard enough for me ...
Administrative Law Judge: Mr. Sealey, we have had his matter scheduled for some time. This matter has been pending since July. You cannot walk in when the Division of Parole has produced independent witnesses who have taken time to come to court today and now say all of a sudden you want another lawyer. It doesn't work that way. I am not going to play that game.
Petitioner: This isn't a game. I need my witness to come in. I never got a chance to
ALJ: Well, that was up to you and [your attorney]
Petitioner: I spoke with my lawyer about it.
Probation Specialist: Judge, we'll state on the record we did subpoena the victim andshe's afraid of him. She will not come in here.
Petitioner: Your, Honor, I object to that. That's a lie.
>>>
Administrative Law Judge: Mr. Sealey, you knew the hearing was scheduled for today, right?
Petitioner: Yes.
Administrative Law Judge: Why didn't you have your witnesses here?
Petitioner: I am unable to get in contact with [my lawyer] or my wife.
Probation Specialist: And that's not true, Judge, because we have, [a parole officer] will testify to tape recordings of telephone conversations that Mr. Sealey has been able to make to several different people, so there's no reason why.
Administrative Law Judge: All right, Mr. Sealey, against, we're going today. Do you want [your attorney] to represent you or are you going to act as your own lawyer?
Petitioner: I can't, Your Honor. I can't represent myself. I can't.
Administrative Law Judge: Then [petitioner's attorney] will be your lawyer, all right.
Attorney: Your Honor, I will stand by as stand by counsel.
Administrative Law Judge: Yes. All right, ...
Based on this Court's review of the record, the Administrative Law Judge clearly denied petitioner's request for substituted counsel and the petitioner never requested to be permitted to proceed pro se. Thus, it is unclear why the Administrative Law Judge apparently approved counsel's offer to proceed as “stand by” counsel. Further, because the issue was discussed off the record, this Court is unable to determine whether petitioner's request was a serious one, and thus whether the Administrative Law Judge was obligated to or did inquire as to the basis for his request. Because this Court must speculate with regard to both the nature of the request and the scope of any consequent inquiry, the Court is constrained to grant the petition and direct a new hearing.
Accordingly, based on the foregoing, it is
ORDERED AND ADJUDGED that the petition is granted and it is further
ORDERED AND ADJUDGED that the matter is remitted to respondents to conduct a de novo final revocation hearing within 20 days of the date of this Decision and Order
This Original Decision and Order is being returned to the Attorney General. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.
SO ORDERED!