April A. Newbauer, J.

Robert Jereski, Esq., The Legal Aid Society, for petitioner

David Cheng, Assistant Attorney General, Office of the State Attorney General, for respondents

April A. Newbauer, J.

Relator Hubert Wiggs ("Wiggs") petitions for a writ of habeas corpus on the grounds that his due process rights were violated because he did not knowingly waive his preliminary parole revocation hearing. The respondent contends that Wiggs' claims are without merit since Wiggs gave a valid waiver of his right to a preliminary hearing. A hearing was granted in a decision dated May 4, 2018 on the issue of whether DOCCS provided false or misleading information to Wiggs which induced Wiggs to waive his right to a preliminary hearing. See People ex rel. Robertson v. NYS Div. of Parole , 67 N.Y.2d 197, 501 N.Y.S.2d 634, 492 N.E.2d 762 (1986). On May 18, 2018, the hearing was commenced and on May 31, 2018, the hearing was concluded. For the reasons stated below, the petition is granted as there was no valid waiver.

Facts

Petitioner Wiggs was convicted in the New York and Cayuga County Supreme Courts for Attempted Criminal Possession of a Weapon in the Second Degree, Criminal Possession of a Controlled Substance in the Third Degree and Promotion of Prison Contraband in the First Degree. Wiggs received an indeterminate sentence of two to four years and two concurrent determinate sentences of three years with five years' post release supervision. On July 3, 2015, Wiggs was released to parole supervision. Wiggs agreed to adhere to certain conditions that DOCCS imposed upon his release with the understanding that his failure to abide by these conditions would result in the revocation of his parole. Wiggs will reach the maximum expiration date of his sentence on September 23, 2021.

On December 6, 2016, Wiggs was declared delinquent and charged with violating four conditions of his parole including allegedly possessing a gravity knife and engaging in threatening behavior. See Ex B (attached to Opposition to Verified Amended Petition for a Writ of Habeas Corpus).

On January 30, 2018, DOCCS issued and lodged parole warrant # 792007. That same day, Wiggs was served with a copy of the Violation of Release Report and a Notice of Violation. Wiggs contends that Parole Officer ("PO") Gardner told him to waive his preliminary hearing so that his parole violation would be resolved more quickly and informed him that the most severe sanction he would receive was 90 days. Based on these alleged false representations, Wiggs waived his preliminary hearing. Wiggs also asserts that had he been given accurate information he would have requested a hearing.

Respondent maintained that all that the parole officer did was explain the charges in the violation of release report, and Wiggs' basic rights. Respondent suggested that Wiggs elected to waive a preliminary hearing, and a final parole hearing was appropriately scheduled for February 9, 2018. Wiggs chose to have his final hearing placed on the "K Calendar" for an indefinite adjournment. Wiggs has a pending criminal matter and is awaiting a resolution. Both PO Gardner and Wiggs provided sworn statements detailing their relative positions.

As there was an issue of fact of whether DOCCS provided false information to Wiggs which induced Wiggs to waive his right to a preliminary revocation hearing, this court granted a hearing in a decision dated May 4, 2018. On May 18, 2018, the hearing was commenced and on May 31, 2018, the hearing was concluded.

Petitioner Wiggs and his wife, Kenya Wiggs, testified at the hearing. Wiggs testified that as of January of 2018, he had been on parole for 31 months without incident. Then, on January 6, 2018, Wiggs testified that he was arrested and charged with a robbery. Wiggs reported the arrest to PO Gardner on January 9, 2018, the day after his release from jail. On January 31, 2018, Wiggs reported to the parole office while leaving his two teenage sons outside of the office. Wiggs indicated that he waited approximately one and a half hours to be seen. When he met with PO Gardner, who had been supervising him on parole for a period of six months, Wiggs was placed in handcuffs and brought into a back room where he was kept for approximately one hour. When PO Gardner returned, she was carrying papers. One of the documents was the violation of release report with three charges, all relating to the arrest, and the other document was the waiver form.

Wiggs also testified that PO Gardner and another female officer transported him to DOCCS at 161st Street within the Bronx courthouse. Wiggs said he asked PO Gardner how much time would he get and that she told him not to worry, 90 days was the most he would receive if violated on parole. Wiggs also indicated that PO Gardner said that another parolee received fewer days on a more serious offense. Wiggs could not remember the words that PO Gardner used about the preliminary hearing but she told him that he would get a final hearing date faster, within two weeks, if he waived. Wiggs testified that the parole officer did not take the time to explain anything, and based on her statements, he signed the waiver form. He indicated that she had not lied to him in the past so he trusted her. Wiggs wanted to get the process over more quickly and because February 14, 2018 was only fourteen days away and he understood the most he would be violated for was 90 days, Wiggs signed the waiver form.

On his way to the Bronx courthouse, Wiggs asked if he could make a phone call to his wife to explain what was happening and to provide arrangements for his sons. PO Gardner called his wife from the speaker on her cell phone. Kenya Wiggs testified that she received the phone call from the defendant via PO Gardner indicating that he was to be incarcerated. She described Wiggs as upset because their kids had to see him being placed in a car with the parole officer and going off to jail. As Wiggs was going on about how he did not know what was going on or how much time he would receive, PO Gardner interrupted their conversation and spoke with her on the cell phone. Kenya Wiggs corroborated her husband's account that PO Gardner assured her that Wiggs would not do more than 90 days because this was his first violation of parole.

At the conclusion of the petitioner's presentation of evidence, the respondents called PO Gardner. PO Gardner testified that she has been a parole officer for DOCCS for seventeen years. She began supervising Wiggs in September of 2017. On January 30, 2018, Wiggs' regular scheduled report date, she took Wiggs into custody based upon her investigation of his arrest on January 6, 2018.

PO Gardner confirmed that at approximately 4:30 p.m. on January 30th, while transporting Wiggs to Bronx Criminal Court to lodge him with the Department of Corrections, she explained the nature of the parole violation process. PO Gardner testified that she told Wiggs the following: that he had a right to a preliminary hearing and a final hearing; if he selected to have a preliminary hearing, the parole officer only needed to prove one charge; the preliminary hearing would be commenced within fourteen days and if there was a finding of probable cause he would be held and the final hearing would take place eight days later. She also explained that if he waived the preliminary hearing, he could go straight to the final hearing which would be much faster resolution. PO Gardner also testified that served Wiggs with a notice of violation and a waiver form at Bronx Criminal Court on January 30, 2018 at 5:15 p.m. before she lodged him. She indicated that before Wiggs signed the documents he read the waiver and she knew that because she observed Wiggs looking at the documents for about five minutes. PO Gardner testified that she did not remember if Wiggs asked her any questions—about time assessment if he were violated, about the preliminary hearing, or if witnesses would come and testify. On cross examination, however, she was confronted with her supporting affidavit (Ex F) in which she stated that Wiggs asked her if the complainant would come to the preliminary hearing and testify. She told Wiggs she did not know but that the arresting police officer would testify. Wiggs then decided he wanted to go straight to a final hearing. PO Gardner indicated that her memory was refreshed once she reviewed her affidavit.

PO Gardner also acknowledged placing a phone call on her cell phone to Wiggs' wife as she transported Wiggs to Bronx Criminal Court. She remembered nothing about the phone call except telling Kenya Wiggs was that she was ending the call because they had arrived at the courthouse. She denied stating to Wiggs or to his wife that Wiggs was only getting 90 days. PO Gardner also testified that she does not mind conducting preliminary hearings at all and maintained that doing so does not add to her workload.

Upon a question from the court, PO Gardner explained that she advises parolees of their rights to a preliminary hearing and final hearing while being transported to Central Booking because once the parolee is taken into custody, she wants to remove the individual from the parole office as soon as possible for safety reasons. Upon arrival at Bronx Criminal Court, New York City DOCCS takes over, so PO Gardner stated there is not enough time to review parolees' rights there.

At the conclusion of the hearing, the parties agreed that Wiggs was not eligible for a time assessment of 90 days.

Findings

Parolees have the right to a preliminary hearing scheduled within fifteen days after a parole warrant is executed unless the parolee waives his right to the hearing. Executive Law § 259–i(3)(c)(i) & (iv). Failure to conduct a timely preliminary revocation hearing violates the parolee's right to due process. People ex rel. Matthews v. NYS Div. of Parole , 95 N.Y.2d 640, 643, 722 N.Y.S.2d 213, 744 N.E.2d 1149 (2001). A parolee may waive his right to a preliminary hearing. However, any waiver of the preliminary hearing must be knowing, intelligent and voluntary. See People ex rel. Moll v. Rodriguez , 132 A.D.2d 766, 516 N.Y.S.2d 998 (3rd Dept. 1987).

A waiver is made knowing, intelligent and voluntary when the parolee is informed of his "rights concerning the hearing and the effect of his waiver" People ex rel. Moll v. Rodriguez, 132 A.D.2d at 767, 516 N.Y.S.2d 998. Waivers are generally not presumed valid since it must initially be established that a waiver was in fact made. People ex rel. Melendez v. Warden , 214 A.D.2d 301, 302, 624 N.Y.S.2d 580 (1st Dept. 1995). But when a waiver is executed, it is the petitioner who bears the burden of demonstrating it was invalid. Matter of White v. NYS Div . of Parole , 60 N.Y.2d 920, 922, 470 N.Y.S.2d 581, 458 N.E.2d 1258 (1983).

"[A] writing clearly and unambiguously documenting the parolee's intention to relinquish his right" to a preliminary hearing is sufficient prima facie evidence, at which point the parolee must "demonstrate that the waiver was nonetheless defective" because it was not voluntarily and intelligently made. Melendez , 214 A.D.2d at 302, 624 N.Y.S.2d 580 ; see also People ex rel. Brown v. Warden , 45 Misc. 3d 1212(A), 2014 WL 5471652, *6 (Sup. Ct. Bronx Co. 2014) ; People ex rel. Edwards v. NYS Div. of Parole , 37 Misc. 3d 469, 473, 949 N.Y.S.2d 916 (Sup. Ct. Bronx Co. 2012). DOCCS presented a waiver form with the signatures of Wiggs and PO Gardner. (Ex A) On its face, this writing documents Wiggs' intention to relinquish his right to a preliminary hearing. See Melendez , 214 A.D.2d at 302, 624 N.Y.S.2d 580 ; see also People ex rel. Quinones v. NYS Bd. of Parole, 66 N.Y.2d 748, 497 N.Y.S.2d 366, 488 N.E.2d 112 (1985) ; Matter of White v. NYS Div . of Parole , 60 N.Y.2d 920, 922, 470 N.Y.S.2d 581, 458 N.E.2d 1258 (1983). Petitioner conceded that DOCCS met its initial burden by producing a facially sufficient waiver admittedly signed by Wiggs. Despite the existence of the form, Wiggs urges the court to consider the totality of the circumstances in determining whether he knowingly and intelligently waived his right to a preliminary hearing or was instead induced by erroneous advice and/or false promises.

The fact that Wiggs may have signed the waiver document without reading it is of no consequence. See People ex rel. Adams v. Warden, 8 Misc. 3d 1010(A), 2005 WL 1571881 (Sup. Ct. Bronx Co. 2005). The crux of the issue is rather whether Wiggs was induced to sign the form by erroneous information and misleading advice from PO Gardner. Wiggs claims that PO Gardner told him that if he was found to have violated a condition of his parole, the most he would receive is 90 days' incarceration. Based upon this representation, Wiggs signed the waiver form and elected to have a expeditious final hearing to limit the amount of time he would serve. The parties agree that to the extent information about a 90 day penalty was relayed, it was inaccurate since Wiggs, as a category 1 parole violator, would be subject to a minimum of 15 months' incarceration upon revocation of parole or a minimum of 12 months incarceration if he accepted responsibility for the violation. See 9 NYCRR 8005.20(c)(1)(i). Wiggs was not eligible for a time assessment of 90 days.

Wiggs had been on parole for two and a half years without incident and this was his first violation of parole. Wiggs credibly testified that he waived his right to a preliminary hearing because assurances by PO Gardner that, at most, he would receive a time assessment of 90 days. Kenya Wiggs confirmed that while she was speaking on a cell phone with Wiggs about his concerns over the amount of time he could be assessed if violated, PO Gardner interrupted their conversation to instruct her on the maximum or likely penalty, which she said would be 90 days. Kenya Wiggs also stated that PO Gardner informed her that the reason Wiggs would do no more than 90 days because it was his first violation of parole.

A parole officer may have no duty to answer questions about the hearing process, but if the choice is to do so, the answers must be accurate. The credible testimony leads to the conclusion that PO Gardner misled the parolee and induced him to sign the waiver form. Cf., People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 (2013) ; People v. Reynolds, 25 A.D.2d 487, 266 N.Y.S.2d 604 (4th Dept. 1966). PO Gardner's testimony on the critical issue of her alleged advice was self serving and lacking in credulity. She refused to acknowledge giving the advice both Wiggs and his wife remembered in detail. She denied any of the administrative burdens on DOCCS of conducting the preliminary hearing: the investiture of her own time, including travel to and from Rikers Island, the need to produce at least one witness and the need to show probable cause for the arrest. Her testimony also wavered as to statements she made to Wiggs. She first testified that she simply gave Wiggs her memorized rendition of his rights and answered no questions, but later admitted that she had addressed some questions about the preliminary hearing. The credible portions of the testimony of all three witnesses suggest that the parole officer genuinely sought to reassure the parolee about his potential exposure in order to defuse his agitation at the time.

Viewing the totality of the circumstances, Wiggs did not knowingly waive his right to be present at a preliminary hearing. Believing that the most time that he could be assessed was 90 days, Wiggs elected to proceed to a final hearing to resolve the matter promptly. The petitioner persuasively argues that the parole officer's advice was directed toward a category 3 parole violator. There would have been a strong incentive to resolve this matter quickly, since the 90 days would not begin to run until the entry of a guilty plea at the final revocation hearing. Therefore, foregoing a preliminary hearing to obtain a final hearing more quickly would mean less jail time for a category 3 parole violator. However, the same was not true for Wiggs, who was a category 1 violator. Any time assessment would run from the lodge date of the parole warrant. See 9 NYCRR § 8002.6 ( c). The incentive to waive a preliminary hearing is removed because the time it takes to resolve the parole matter is irrelevant to the amount of time the parolee will spend in custody. While the petitioner received timely and proper notice of the charged parole violations pursuant to New York Executive Laws §§ 259–i(3)(c)(iii), he did not make a knowing, intelligent and voluntary waiver of his right to a preliminary hearing in compliance with New York Executive Law §§ 259–i(3)(c)(i) and (iv). DOCCS has denied Wiggs his right to a timely preliminary hearing.

The right to be present at a preliminary hearing is a fundamental due process guarantee. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ; Wyche v. N.Y. State Div. of Parole, 66 A.D.3d 541, 887 N.Y.S.2d 71 (2009) ; People ex rel. Melendez v. Warden , 214 A.D.2d 301, 624 N.Y.S.2d 580 (1st Dept. 1995). Respondent mistakenly relies on People v. Gonzalez , 160 A.D.2d 545, 546, 554 N.Y.S.2d 195 (1st Dept. 1990) and one lower court opinion which misconstrue it to claim that the only remedy for Wiggs is a new preliminary hearing. That a due process violation should merely result in a new preliminary hearing was never the holding of Gonzalez. The First Department held in Melendez that unless the parolee unambiguously waives his right to a preliminary hearing, the failure to afford him one results in his restoration to parole. The proper remedy is therefore vacatur of the parole warrant. In addition to adhering to controlling authority, this resolution may also serve to discourage DOCCS personnel from offering gratuitous advice in lieu of permitting an alleged parole violator to confer with counsel.

Conclusion

After careful consideration of the parties' respective papers submitted in connection with this matter, the minutes of the hearing conducted and the relevant statutes and case law, the petition is sustained. Accordingly, the parole warrant # 704801 is dismissed and Wiggs' application to be restored to parole status is granted provided that Wiggs is not presently incarcerated on the basis of another warrant or commitment not predicated on the violation of parole.

This decision shall constitute the order of this court.