Opinion
No. 250329–2012.
2012-07-25
The PEOPLE of the State of New York ex rel. Mousa ALMINAWI, Petitioner, v. WARDEN, North Infirmary Command, New York State Department of Correction and Community Supervision, Respondents.
Susan Light, Esq., Kerry Elgarten, Esq., The Legal Aid Society New York, for Petitioner Alminawi. Eric T. Schneiderman, Attorney General, James B. Cooney, Esq., Assistant Attorney General, New York, for Respondent Department of Correction and Community Service.
Susan Light, Esq., Kerry Elgarten, Esq., The Legal Aid Society New York, for Petitioner Alminawi. Eric T. Schneiderman, Attorney General, James B. Cooney, Esq., Assistant Attorney General, New York, for Respondent Department of Correction and Community Service.
DOMINIC R. MASSARO, J.
Petitioner Mousa Alminawi (hereinafter Petitioner) demands the issuance of a habeas corpus writ directed to the Warden of the Northern Infirmary Command at Rikers Island Correctional Center and to the New York State Department of Correction and Community Supervision (hereinafter, DOCCS). The writ will vacate Parole Warrant # 630675 and cancel alleged parole violations against him.
Stated another way, Petitioner wants habeas corpus relief to facilitate review of DOCCS' decision to detain him and, if granted, will cancel any parole delinquency, thereby releasing him from DOCCS' custody. In the event procedural defects exist with the instant application, Petitioner suggests that the action be converted into an Article 78 proceeding and decided upon the merits.
The claimed parole violation involves Petitioner's commission of a Class E felony: Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45) arising out of the stealing of a van in Kings County on December 11, 2011.
Background
On December 11, 2011, the New York City Police Department arrested Petitioner in Kings County for (1) Grand Larceny in the Fourth Degree (Penal Law § 155.30); (2) Unauthorized Use of a Vehicle in the Second Degree (Penal Law § 165.06); (3) Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45); and (4) Petit Larceny (Penal Law § 155.25). Petitioner was unable to pay bail and arraigned before the preliminary hearing at issue here. As a result of his arrest, DOCCS says Petitioner violated Condition No. 8 of his Conditions of Parole Release (Exhibit A) because he was in possession of a stolen van.
DOCCS served Petitioner with a Violation of Release Report and Notice of Violation on February 3, 2012; a preliminary hearing was held eight days later (see, Exhibit G). At the preliminary hearing, the hearing officer limited the charge to stealing a motor vehicle. Petitioner insists no evidence exists in the record supporting the charge. In this regard, Petitioner argues no legal basis exists for the hearing officer to have conformed the charge to the proof adduced at the preliminary hearing.
Executive Law § 259–i(3)(c)(i) requires suspected parole violators be afforded a preliminary parole revocation hearing within fifteen days from the time the warrant is executed. Similarly, Executive Law § 259–i(3)(c)(iv) requires that “[t]he preliminary hearing be scheduled no later than fifteen days from the date of the execution of the warrant” (see generally, People ex rel. Blasco v. New York State Div. of Parole, 33 Misc.3d 650, 929 N.Y.S.2d 472 [Sup.Ct. Bronx 2011] ). A preliminary hearing determines if probable cause exists that a petitioner violated conditions of parole. In this case, there is no dispute that the hearing was timely and the hearing officer's decision was that probable cause exists to retain Petitioner in custody.
.Penal Law § 165.45 (Criminal possession of stolen property in the fourth degree) provides, in pertinent part, that “(a) person is guilty of criminal possession of stolen property in the fourth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when: (1)(t)he value of the property exceeds one thousand dollars; ... or (5)(t)he value of the property exceeds one hundred dollars and the property consists of a motor vehicle, as defined in section one hundred twenty-five of the vehicle and traffic law.... Criminal possession of stolen property in the fourth degree is a class E felony.”
The question for decision now is whether the hearing officer properly determined that Petitioner is guilty of violating the charge which asserts violation of Condition No. 8 of his Conditions of Parole Release (see, Exhibit A). In this release condition, Petitioner promised that “I will not behave in such a manner as to violate the provision of any law to which I am subject which provides for a penalty or imprisonment nor will my behavior threaten the safety or well being of myself or other” (Exhibit A, Condition No. 8). The charge, which asserts Petitioner violated Condition Number 8, states Petitioner stole a motor vehicle which was valued at $1,000.00 (see, Exhibit E).
For this charge, the hearing officer found probable cause to justify proceeding, but otherwise failed to rule on other Violation of Release Report charges. Those charges also assert violation of Condition No. 8 (see, Exhibits A and G, page 26)
The charge provides “Mousa Alminawi violated [Condition] No. 8 of the conditions governing his release in that on 12/11/11 at approximately 4:12 pm in the vicinity of 1153 E. 43rd St., B'klyn, N.Y. he stole a motor vehicle (van) which was valued over $1,000.00.”
Petitioner's Position
Under the Executive Law, Petitioner argues, a hearing officer must determine whether sufficient probable cause exists to find a parole violation based solely upon evidence adduced at a preliminary hearing (see, Executive Law § 259–i[3][c][vi] ). Petitioner says the hearing officer erred when, at the conclusion of the hearing, he found probable cause for the charge when the record lacked proof of all elements needed to show Petitioner committed the crime of stealing a motor vehicle. Therefore, given insufficient evidence in the hearing record, Petitioner must be released and restored to parole supervision.
DOCCS' Position
In opposition, DOCCS counters that Petitioner is procedurally barred from release due to a pending criminal matter in Kings County .
Further negating relief is the fact that the record shows probable cause exists upon the charge. In this regard, DOCCS relies upon a police officer's testimony, in which the officer gave sufficient detail so as to permit Petitioner to defend himself (see generally, Alvarado v. Goord, 252 A.D.2d 650, 675 N.Y.S.2d 220 [3rd Dept.1998] ) and Petitioner makes no claim he could not defend himself at the preliminary hearing. Thus, DOCCS says, the writ must be denied. Finally, in the event the Court finds the preliminary hearing failed due process standards, the proper remedy is a new preliminary hearing (see generally, People ex rel. Hickman v. Russi, 257 A.D.2d 457, 682 N.Y.S.2d 584 [1st Dept.1999] ).
Petitioner does not contest the fact that he is being held on bail in Kings County (see, Reply ¶ 4).
Petitioner's Reply
Rejecting DOCCS' dismissal argument arising from the fact that Petitioner is being held on bail for other criminal charges, Petitioner insists the proper remedy is to convert the application to an Article 78 proceeding to be decided upon the merits (see generally, People ex rel. Harper v. Warden, Rikers Is. Correctional Facility, 21 Misc.3d 906, 870 N.Y.S.2d 692 [Sup.Ct. Bronx 2008] ). Petitioner restates his argument that the hearing officer erred in finding probable cause because no evidence exists in the record that he stole the van. DOCCS failed to prove the crime charged; therefore, the record is insufficient to justify denying Petitioner's liberty upon a claim that a crime, other than the one charged, is sufficient to sustain the charge.
According to Petitioner, the hearing officer misunderstood pertinent Penal Law provisions and failed to recognize that the record does not show who stole the van. Therefore, instead of a second preliminary hearing, Petitioner says, due process denial at a preliminary hearing level require the warrant's dismissal (see, generally, People ex rel. Rosenfeld v. Sposato, 87 A.D.3d 665, 928 N.Y.S.2d 350 [3rd Dept.2011]; People ex rel. Goodman v. New York State Div. of Parole, 9 Misc.3d 1112[A] [Sup Ct. Bronx 2005] ).
Petitioner stresses that a preliminary hearing is designed to determine whether probable cause exists to justify proceeding administratively to find whether a parolee violated a condition of release.
Under the circumstances, such a delay in this case is a violation of the Fifth and Fourteenth Amendments and Article 1, § 6, of the New York State Constitution.
There is no dispute that if probable cause exists, Petitioner remains in custody pending a final hearing upon his parole violation.
Legal Discussion
Petitioner's application for habeas corpus relief is denied. In this case, the Court finds that DOCCS established probable cause exists to believe that the parolee violated the conditions of his parole in an important respect (see, Executive Law 259–i[3[[c][iv] ). No requirement exists that DOCCS prove each element in the Violation of Release Report. Rather, a preliminary parole revocation hearing is intended to be informal in nature (see generally, People ex rel. Korn v. New York State Div. of Parole, 274 A.D.2d 439, 710 N.Y.S.2d 124 [2nd Dept.2000] ) (see also, People ex rel. Young v. Warden of Penitentiary of City of New York, 17 Misc.3d 1105A [Sup.Ct. Bronx 2007] ).
A preliminary hearing is less formal than a criminal trial, and only a minimal inquiry by the hearing officer is necessary to determine whether probable cause exists to believe a parolee committed the acts which constitute a violation of his parole in an important aspect. This is so because parole violation preliminary hearings are essentially administrative proceedings, not criminal trials (see, People ex rel. Ayers v. Lombard, 87 Misc.2d 355, 385 N.Y.S.2d 242 [Sup.Ct. Monroe 1976] ). The standard of proof that controls is whether the evidence is satisfactory to the hearing officer. Stricter common law standards of proof do not apply (see generally, Morrissey v. Brewer, 408 U.S. 471 [1972] ).
Accordingly, only minimal inquiry is needed for a hearing officer to determine probable cause exists that a parolee committed acts constituting a violation of parole conditions (see generally, People ex rel. Calloway v. Skinner, 33 N.Y.2d 23 [1972] ). While parole revocation requires due process be afforded a parolee at the preliminary hearing, it is not as exacting as the standards are in the context of a criminal charge or a final hearing, rather it is a more relaxed standard (see generally, Morrissey v. Brewer, supra.) (see also, People ex rel. Daniel v. Warden of Rikers Island Correctional Facility, Index No. 252502–2009 [Sup Ct. Bronx 2009] ). Based upon the foregoing, the Court determines probable cause exists and, upon these facts, DOCCS can properly continue to retain Petitioner in custody pending further hearing.
Other Issues
Upon consideration of the record, the Court finds that, based upon the record, no reason exists for converting this matter into an Article 78 proceeding.
Concerning the effect of Petitioner's pending Kings County criminal matter upon this application, Petitioner says the criminal matters were disposed (but see, People ex rel. Mendolia v. Superintendent, Green Haven Correctional Facility, 47 N.Y.2d 779 [1981][writ dismissal where incarcerated upon new charges). Regardless, Petitioner concedes that current case law requires dismissal of the writ petition here because Petitioner's final revocation hearing subsumed his claims concerning the preliminary hearing. Notwithstanding, Petitioner wants the Court to disregard case law when he argues that the parole authorities have directed that the District Attorney in Bronx County refrain from arguing that Petitioner waived his preliminary hearing claims when he proceeds to the final revocation hearing. The Court finds that the District Attorney has not raised waiver issues here, but neither has Petitioner proved that the criminal charges in Kings County were decided in his favor. In light of the Court's determination that the hearing officer properly determined that probable cause exists, no purpose is served by further considering this argument.
WHEREFORE, it is hereby
The Court read the following papers in deciding this matter: Petition for Writ of Habeas Corpus with attachments; Affirmation of James B. Cooney, Esq., in Opposition to Petition for Writ of Habeas Corpus with attachments, and Affirmation of Kerry Elgarten, Esq., in Reply to Opposition to Writ of Habeas Corpus.
ORDERED that the branch of the Petition applying for a Writ of Habeas Corpus seeking release of Petitioner from Respondents' custody is DENIED, and it is further
ORDERED that the branch of the Petition seeking to vacate the parole violation warrant against Petitioner is DENIED, and it is
ORDERED that the branch of the Petition seeking, in the alternative, to convert this application to a CPLR Article 78 proceeding is DENIED, and it is further
ORDERED that the Clerk of the Court is directed to terminate this matter.
The foregoing constitutes the decision and order of this Court.