Opinion
2013-02-7
PEOPLE of the State of New York, ex rel. Terrance ALLEN, aka William Mitchell, Petitioner v. WARDEN OF GEORGE MOTCHAM DETENTION CENTER, and New York State Department of Corrections and Community Supervision, Respondents.
Jacob Segall, Esq., The Legal Aid Society, Parole Revocation Defense Unit, New York, for Petitioner. Eric T. Schneiderman, Attorney General, by Anne M. Hehenberger, Esq., Assistant Attorney General, New York, for Respondent Department of Corrections.
Jacob Segall, Esq., The Legal Aid Society, Parole Revocation Defense Unit, New York, for Petitioner. Eric T. Schneiderman, Attorney General, by Anne M. Hehenberger, Esq., Assistant Attorney General, New York, for Respondent Department of Corrections.
NICHOLAS IACOVETTA, J.
The petitioner moves for vacatur of the parole warrant and restoration of the petitioner to parole supervision on the grounds that the Division of Parole failed to provide the petitioner with the Notice of Violation within the three day statutory time limit, and that the Division failed to provide the petitioner with a preliminary hearing within the fifteen day statutory time limit. Petitioner's motion is denied on both grounds.
Background
On May 1, 2010, petitioner was sentenced to two years incarceration plus three years of post-release supervision for his conviction of Criminal Sale of a Controlled Substance in the Third Degree. He was released to parole supervision on September 18, 2012, at which time he signed a Certificate of Release to Parole Supervision wherein petitioner agreed to several conditions of release, including that within 24 hours of his release he will present himself to the Staten Island parole office at 146 Bay Street, Staten Island, New York to make his arrival report. The certificate of release also identified his approved residence as Harmony House in Brooklyn, New York. Petitioner's parole supervision was scheduled to expire on January 10, 2015 (see Affirmation in Opposition, Exhibit A).
On October 1, 2012, a Violation of Release report was prepared declaring petitioner delinquent as of September 19, 2012. According to the Division of Parole, petitioner violated Rule 1 of his conditional release by never making his arrival report to the Staten Island Parole Office, that he violated Rule 2 by failing to make his weekly reports to the Staten Island Parole Office, and that he violated Rule 4 by changing his approved residence at Harmony House without knowledge or permission of his parole officer. A warrant for his arrest was issued on that same date, October 1, 2012 (see Affirmation in Opposition, Exhibit B).
On October 23, 2012, petitioner was rearrested by the New York City Transit Police and charged in a misdemeanor complaint in New York County criminal court with the charges of Theft of Services (P.L. § 165.16), a class A misdemeanor, and Loitering (P.L. § 240.35), a violation. He pled guilty on October 24, 2012 to New York City Transit Authority Rule 1050.6, a violation, and received a sentence of ten days incarceration.
The parole warrant was lodged against the petitioner on October 29, 2012. The petitioner was served with the Notice of Violation on November 9, 2012, and the preliminary hearing was conducted on November 26, 2012.
I. Petitioner's conviction of a violation does not constitute “a new crime” which would obviate his right to a preliminary hearing.
Executive Law § 259–i[3][c][iii] directs that a releasee violator “shall, within three days of the execution of the warrant, be given written notice of the time, place and purpose of the hearing...” The purpose of this statute is to ensure the releasee is notified of the violations charged against him within a sufficient time to investigate and prepare a defense for the preliminary hearing.
Executive Law § 250–i[3][c][i] directs, “Within fifteen days after the warrant for retaking and temporary detention has been executed, unless the releasee has been convicted of a new crime committed while under the presumptive release, parole, conditional release or post-release supervision, the board of parole shall afford the alleged presumptive release, parole, conditional release or post-release supervision violator a preliminary revocation hearing...” (Emphasis added).
The standard of proof at a preliminary hearing “shall be probable cause to believe that the... person under post-release supervision has violated one or more conditions of his... post-release supervision in an important respect. Proof of conviction of a crime committed while under supervision shall constitute probable cause for the purposes of this section ” (Executive Law § 250–i[3][c][iv] ) (Emphasis added).
Accordingly, since any defendant who is convicted of a new crime while on parole has no right to a preliminary hearing, the claims that he was not served with a copy of the Notice of Violations, or that the preliminary hearing was not conducted within the statutory time periods would be of no consequence (see People ex rel. Walker v. Bradford, 269 A.D.2d 316, 704 N.Y.S.2d 464 [First Dept.2000];People ex rel. Johnson v. Russi, 258 A.D.2d 346, 685 N.Y.S.2d 661 [First Dept.1999], lv. denied 93 N.Y.2d 945, 693 N.Y.S.2d 504, 715 N.E.2d 506 [1999];People ex rel. Pino v. Amacucci, 300 A.D.2d 607, 752 N.Y.S.2d 548 [Second Dept.2002], lv. denied 99 N.Y.2d 551, 760 N.Y.S.2d 102, 790 N.E.2d 276 [2003] ).
In this case, however, petitioner was convicted on October 24, 2012, of New York City Transit Authority Rule 1050.6, a violation, not a crime. A “crime” is defined as a misdemeanor or a felony (P.L. § 10.00[6] ). Since petitioner's conviction for the violation does not obviate his right to a preliminary hearing, the court must consider whether petitioner's claims that the Division of Parole failed to provide the petitioner with the Notice of Violation within the three day statutory time limit, and that the Division failed to provide the petitioner with a preliminary hearing within the fifteen day statutory time limit have any merit.
II. The parole warrant was timely executed and did not violate petitioner's constitutional right to due process.
There is no statutory requirement that a parole warrant be executed within a certain number of days after a defendant is rearrested. Absent a demonstration that “respondent manifested a gross disinterest in retaking” petitioner, so long as the warrant is executed prior to the expiration date of a defendant's underlying sentence, the execution of the warrant is deemed timely (see People ex rel. Cross v. NYS Div. of Parole, 261 A.D.2d 108, 108, 690 N.Y.S.2d 193 [First Dept.1999] ).
Petitioner's parole supervision was to expire on June 10, 2015. The parole warrant was issued October 1, 2012, within two weeks of petitioner's violation of the conditions of his parole. Petitioner was rearrested on October 23, 2012, sentenced pursuant to his conviction to ten days incarceration on October 24, 2012, and the parole warrant was lodged against the petitioner on October 29, 2012. Since the warrant was executed within six days of petitioner's rearrest, and approximately three years before the expiration of petitioner's supervision, there is no evidence of “gross disinterest” by the Division of Parole. The parole warrant was timely executed.
III. Petitioner's motion for vacatur of the parole warrant and restoration of the petitioner to parole supervision on the ground that the respondent failed to serve petitioner with Notice of Violation within three days of execution of warrant is denied for the following three reasons:
A. Failure to serve petitioner with Notice of Violation within three days of execution of warrant does not entitle petitioner to be restored to parole supervision
Executive Law § 259–i[3][c][iii] directs that a releasee violator “shall, within three days of the execution of the warrant, be given written notice of the time, place and purpose of the hearing...”
In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, the United States Supreme Court decided that the “minimum requirements of due process” due a parolee facing re-incarceration for a violation of parole, “include (a) written notice of the claimed violations of parole...” ( Morrissey v. Brewer, 408 U.S. at 489, 92 S.Ct. 2593, 33 L.Ed.2d 484). The purpose of this notice it to provide the parolee with sufficient time and information to investigate and prepare a defense before appearing for the preliminary hearing.
However, the three-day limit under Executive Law § 259–i[3][c][iii] is not as strictly construed as the requirements of Executive Law § 259–i [3] [c][i], [iv] (see People ex rel. Washington v. NYS Div. of Parole, 279 A.D.2d 379, 720 N.Y.S.2d 22 [First Dept.2001] ). “[F]ailure to comply with the three-day limit for giving notice of parole violations does not affect the right to be restored to parole absent a showing of prejudice” ( People ex rel. Matos v. Warden, 58 A.D.3d 523, 523, 870 N.Y.S.2d 786 [First Dept.2009], lv. denied 12 N.Y.3d 712, 882 N.Y.S.2d 398, 909 N.E.2d 1236 [2009]; see also People ex rel. Thompson v. Warden, 41 A.D.3d 292, 839 N.Y.S.2d 47 [First Dept.2007];People ex rel. Washington v. NYS Div. of Parole, 279 A.D.2d 379, 720 N.Y.S.2d 22 [First Dept.2001] ).
In this matter, petitioner was served with his Notice of Violation on November 9, 2012, eleven days after execution of the warrant on October 29, 2012. The preliminary hearing was conducted on November 26, 2012, four weeks after receipt of the Notice of Violation. The court notes that not only did petitioner fail to allege any prejudice due to this eleven day delay, petitioner was given four weeks to investigate the violations charged and to prepare his defense for the preliminary hearing. That was almost twice the amount of time given under the statutory 15 days time frame between service of notice and conducting the preliminary hearing under Executive Law § 259–i [3] [c][i], [iv]. The intent of Executive Law § 259–i[3][c][iii] was fulfilled. Petitioner was given more than reasonable and sufficient time to investigate and prepare for his defense at the preliminary hearing, and suffered no prejudice due to the delay.
Furthermore, contrary to petitioner's assertion at the preliminary hearing (Transcript, November 26, 2012, pg. 8, Lines 11–12), petitioner was not kept in custody without knowing why he was there. Petitioner was arrested October 23rd and pled guilty on October 24th and sentenced to 10 days incarceration. The warrant was executed on the 6th day of his sentence. Not only did petitioner know he was incarcerated because of his recent conviction, as of November 9th petitioner was on notice that he was not going to be released at the end of the 10 day sentence because of his violations of the conditions of his parole.
B. Execution of warrant herein deemed November 9, 2012, due to state of emergency caused by Hurricane Sandy therefore service on November 9, 2012 is timely
Under normal circumstances, pursuant to Executive Law § 259–i [3][c][iii], the Division of Parole is to serve a parolee a copy of the Notice of Violation within three days of execution of the parole warrant. Accordingly, since the Department of Corrections lodged the warrant against petitioner on October 29th, pursuant to Executive Law § 259–i[3][c][iii], the three day limit would have fallen on November 1, 2012. However, on October 29, 2012, date of execution of the warrant, New York City was battered with wind and flood damage caused by Hurricane Sandy. In his attempt to emphasize the unreasonableness of the delay in service, defense counsel makes reference to the fact that the Rikers Island Judicial Center was only closed for two days after the hurricane, that it resumed full operations on Wednesday, October 31st (see Defense Affirmation, pg. 6), so therefore there was no excuse for not serving the petitioner with his notice until November 9th. The defense counsel, however, failed to acknowledge that a difference in location that day made a significant difference in how quickly an area and the people therein were able to rebound. The Rikers Island Judicial Center is located in an inland bay in the East River surrounded by Queens and Bronx boroughs. The petitioner's parole officers & offices, however, were located on Bay Street in Staten Island, an area exposed in a direct line with the surge from the Atlantic Ocean, and one of the most well publicized areas most devastated by the hurricane flooding which resulted in unprecedented power and communication outages, and structural damage. Accordingly, using the Rikers Island Judicial Center as the yard stick for reasonableness in this situation is inapposite.
The court further notes that petitioner fails to grant the Staten Island parole offices the same consideration for delays caused by the storm as he does for the Judicial Center. Petitioner does not challenge the parole officer's assertion at the preliminary hearing that the Staten Island Division of Parole did not get their power and telephone communications restored until November 6th, and that they did not receive the fax notifying them that the warrant was lodged against the petitioner until November 9th (Preliminary Hearing Transcript, 11/26/12, pg. 9, Lines 2–7). If petitioner concedes that the storm understandably and excusably caused the Judicial Center to close, and to delay conducting business, including conducting preliminary hearings, for two days (Petitioner's Reply Affirmation, pg. 6), the same logic must be applied in considering and accepting the Staten Island Division of Parole's uncontroverted assertion that the hurricane caused a delay in re-establishing a functioning office until November 6th, and that they did not receive the fax notifying them that the warrant was lodged against the petitioner until November 9th.
The warrant was lodged against this petitioner by the Department of Corrections on October 29, 2012, the day of the hurricane. It is axiomatic that the Executive Law directives cannot work in a vacuum. The statutory time limits necessarily require the Division of Parole to be on notice that the previously issued parole warrant was lodged and that the releasee is being held on that warrant. The division cannot be held responsible for meeting statutory time requirements when they are not aware that the statutory time clock has begun to tick.
Considering the incontrovertible damage caused to Staten Island as a result of Hurricane Sandy, together with petitioner's failure to challenge or controvert respondent's assertion that their office was legitimately closed due to the storm from October 29th to November 6th, and that they did not receive notice of execution of the warrant until November 9th, the court finds that for purposes of calculating statutory time limits herein, the beginning of the three-day limit to serve petitioner pursuant to Executive Law § 259–i[3][c] [iii] with his papers was tolled from October 29th to November 9th (see People ex rel. Hampton v. Warden, 211 A.D.2d 566, 621 N.Y.S.2d 580 [First Dept.1995] where preliminary hearing held legitimately adjourned because Rikers Island Judicial Center was closed on March 3, 1994 due to a snowstorm). On November 9th, once respondents received notice that the warrant had been previously lodged against the petitioner, respondent's immediately went from Staten Island to Rikers Island and served petitioner with his papers. Petitioner's rights pursuant to Executive Law § 259–i[3][c][iii] were therefore fulfilled.
C. Executive Orders Number 52 & 81 tolled the statutory three-day time limit of Executive Law § 259–i[3][c][iii]
On October 31, 2012, in response to the widespread devastation caused by Hurricane Sandy, Governor Andrew Cuomo issued Executive Order Number 52 which states, in part, “WHEREAS, on October 26, 2012, I issued Executive Order Number 47 declaring a disaster emergency in all 62 counties in the State of New York ... In addition, I hereby temporarily suspend and modify, for the period from the date of this Executive Order until further notice, any other statute, local law, ordinance, order, rule or regulation or part thereof, establishing limitations of time for the filing or service of any legal action, notice or other process or proceeding that the courts lack authority to extend through the exercise of discretion, where any limitation of time concludes during the period commencing from the date that the disaster emergency was declared pursuant to Executive Order Number 47, issued on October 26, 2012, until further notice.”
On November 20, 2012, Governor Cuomo issued Executive Order Number 81, which states, in part, “WHEREAS, on October 31, 2012, I issued Executive Order Number 52 to, among other things, suspend deadlines for certain criminal processes and appeals, and which will expire on November25, 2012,” and “The suspension of law ordered by Executive Order Number 52 shall continue through December 25, 2012, except that the provision suspending Sections 30.10 and 3030 of the Criminal Procedure law shall not be continued...”
The court agrees with respondent's assertion that Executive Law § 259–i[3] [c][iii] falls within the directive of Executive Orders Number 52 and 81, and, therefore, the statutory requirement to serve a re-arrested parolee with copies of the Notice of Violation during this time period was tolled to, at a minimum, November 25, 2012. The parole warrant was lodged against the petitioner by the Department of Corrections on October 29, 2012. Petitioner was nonetheless served with his papers on November 9, 2012, well within the extended period of permissible service as directed by the executive orders and, therefore, does not constitute a violation of the statutory time limit (see People v. Bey, 44 A.D.3d 1065, 844 N.Y.S.2d 406 [Second Dept. 2007], lv. denied 9 N.Y.3d 1031, 852 N.Y.S.2d 16, 881 N.E.2d 1203 [2008] [time properly excluded from speedy trial calculation pursuant to executive orders of Governor Pataki as the result of the terrorist attack on the World Trade Center on September 11, 2001]; see also McGarty v. City of New York, 44 A.D.3d 447, 843 N.Y.S.2d 287 [First Dept.2007] [where Governor Pataki's same executive order issued as the result of the terrorist attacks was held not applicable because the law in question had the built in mechanism where a court could exercise its discretion in extending the time limitation] ).
According, for all the reasons set forth above, petitioner's request for vacatur of the parole warrant and restoration of the petitioner to parole supervision on the ground the Division of Parole failed to timely serve petitioner a copy of his Notice of Violation pursuant to Executive Law § 259–i[3][c][iii] is denied.
IV. Petitioner's motion for vacatur of the parole warrant and restoration of the petitioner to parole supervision on the ground that the respondent failed to provide petitioner with a preliminary hearing within fifteen days of execution of the warrant is denied for the following two reasons:
A. Conducting the preliminary hearing on November 26, 2012 was within the fifteen day time limit of Executive Law § 259–i[3][c][i], [iv] due to state of emergency caused by Hurricane Sandy
Executive Law § 259–i[3][c][i] directs that a releasee violator shall be afforded a preliminary revocation hearing “within fifteen days after the warrant for retaking and temporary detention has been executed...” Executive Law § 259–i[3][c][iv] directs a preliminary hearing be scheduled “no later than fifteen days from the date of execution of the warrant.”
“The Executive Law does not require that a preliminary parole revocation hearing be completed within the 15 day period, but only that the hearing be ‘scheduled to take place’ within that period” ( Matter of Emmick v. Enders, 107 A.D.2d 1066, 1067, 486 N.Y.S.2d 559, appeal dismissed, 65 N.Y.2d 1050, 494 N.Y.S.2d 698, 484 N.E.2d 1050). There is no violation of the 15–day limit to conduct a preliminary hearing when the hearing was timely scheduled, but adjourned for legitimate reasons, without prejudice to the petitioner (see Matter of Emmick v. Enders, supra; People ex rel. Burley v. Warden, New York City House of Detention at Riker's Island, 70 A.D.2d 518, 415 N.Y.S.2d 871, lv. denied, 48 N.Y.2d 602, 421 N.Y.S.2d 1026, 396 N.E.2d 205;People ex rel. Morant v. Warden, Rikers Island et al., 35 A.D.3d 208, 826 N.Y.S.2d 40, lv. to appeal denied, 8 N.Y.3d 809, 834 N.Y.S.2d 90, 865 N.E.2d 1257).
For the reasons discussed above, due to the devastating impact of Hurricane Sandy, the court finds November 9, 2012, as the date in this matter from which to calculate any statutory time requirements pursuant to the Executive Law. Accordingly, the respondents had fifteen days from November 9th, i.e., until November 24th, within which to schedule the preliminary hearing.
Petitioner concedes that as stated in the Notice of Violation the preliminary hearing was initially scheduled for Friday, November 23, 2012, one day before expiration of the statutory limit. Petitioner further concedes that he was later advised that the hearing was administratively adjourned to Monday, November 26, 2012, and that the preliminary hearing was conducted on that date. The adjournment of two days after the statutory limit of November 24th did not violate petitioner's rights pursuant to Executive Law § 259–i[3][c] [i], [iv]. When a statutory period ends on a Saturday, Sunday or legal holiday, the statutory time limit is extended by operation of law to the following business day (see People ex rel. Atkinson v. Warden, 201 A.D.2d 271, 607 N.Y.S.2d 256 [First Dept.1994];People ex rel. Frost v. Meloni, 124 A.D.2d 1032, 508 N.Y.S.2d 764 [Fourth Dept.1986], app. denied 69 N.Y.2d 606, 514 N.Y.S.2d 1024, 507 N.E.2d 320 [1987] ). Accordingly, since the hearing was held on the next business day after the statutory time limit expired on a Saturday, there was no violation of petitioner's right to a preliminary hearing pursuant to Executive Law § 259–i[3][c][i],[iv].
B. Executive Orders Number 52 & 81 tolled the statutory fifteen day time limit of Executive Law § 259–i[3][c][i], [iv]
Alternatively, even if the court is incorrect in its assessment that the fifteen day statutory calculation in this case should begin on November 9, 2012, and that the date the Department of Corrections lodged the warrant on October 29, 2012 should be the date from which the statutory time limit should begin, for the reasons discussed above, the court finds Executive Orders Numbers 52 and 81 tolled the statutory requirements pursuant to Executive Law § 259–i[3][c][i], [iv].
The warrant was executed by the Department of Corrections on October 29, 2012. Accordingly, the fifteen day requirement would have ended on November 13, 2012. Executive Order No. 52 was issued on October 31, 2012, thirteen days before expiration of the statutory time limit. Executive Order No. 81 directed expiration of the tolling measures of Executive Order 52 to, at the minimum, Sunday, November 25, 2012. The preliminary hearing was conducted on Monday, November 26, 2012. When a statutory period ends on a Saturday, Sunday or legal holiday, the statutory time limit is extended by operation of law to the following business day (see People ex rel. Atkinson v. Warden, 201 A.D.2d 271, 607 N.Y.S.2d 256 [First Dept.1994];People ex rel. Frost v. Meloni, 124 A.D.2d 1032, 508 N.Y.S.2d 764 [Fourth Dept.1986], app. denied 69 N.Y.2d 606, 514 N.Y.S.2d 1024, 507 N.E.2d 320 [1987] ). Accordingly, since the preliminary hearing was held on the next business day after expiration of the executive order tolling the statutory time limit, there was no violation of petitioner's right to a preliminary hearing pursuant to Executive Law § 259–i[3][c][i],[iv].
For the reasons stated above, petitioner's motion for vacatur of the parole warrant and restoration of the petitioner to parole supervision on the grounds that the Division of Parole failed to provide the petitioner with a preliminary hearing within the statutory time limits is therefore denied.
This opinion shall constitute the decision and order of this court.