Opinion
250417-2011.
Decided May 24, 2011.
Steven Banks, Esq., Abigail Rubenstein, Esq., The Legal Aid Society, Parole Revocation Defense Unit, New York, New York.
Michael Arcati, Esq., Office of Eric T. Schneiderman, Esq., Attorney General of the State of New York, New York, New York.
Petitioner Allen Davis seeks a writ of habeas corpus contending that his parole was revoked in violation of New York law. Petitioner contends that he never waived his right to have a preliminary hearing as to the allegations of parole violation against him. As no preliminary hearing was held, Petitioner contends that revocation of his parole was illegal and that a writ of habeas corpus should be granted providing for his immediate release to parole supervision. See Verified Petition for a Writ of Habeas Corpus (hereafter "Petition), ¶¶ 7, 12-19.
The Division of Parole ("DOP") contends that Petitioner knowingly, intelligently and voluntarily waived his right to any such preliminary hearing and that the revocation of Petitioner's release to parole was lawful.
At issue is Petitioner's allegation that he waived his right to a preliminary hearing with respect to the first report he received from the DOP listing alleged violations of parole ("First Violation Report") but that he later was served with another report which contained at least two charges not contained in the First Violation Report. Respondent does not dispute that Petitioner received one Notice of Violation ("Notice") and that he was served with two "Violation of Release Reports," one, served with the Notice, the other, on a later date, via certified mail ("Second Violation Report").
In sum and substance, the DOP contends that Petitioner's execution of a waiver of his right to a preliminary hearing by checking off a box on the Notice that was served with the First Violation Report also constitutes a knowing, intelligent and voluntary waiver of his preliminary hearing with respect to the allegations in the Second Violation Report. The DOP contends that the difference between the two Reports was made to correct technical errors in the original notice. See Affirmation in Opposition to Petition for Habeas Corpus ("Aff. in Opp.") at p. 6-8.
The Court finds, for the reasons set forth below, that Petitioner's waiver of his right to a preliminary hearing as to the allegations in the First Violation Report does not constitute a knowing, intelligent, or voluntary waiver of his right to a preliminary hearing with respect to the allegations in the Second Violation Report as there is a material difference in the charges alleged in the two reports. Accordingly, as no preliminary hearing was held and Petitioner did not execute a waiver of his right to such hearing, the Court finds that Petitioner's right to a timely preliminary hearing was violated, and grants the writ directing the release of Petitioner to parole for supervision.
I. PROCEDURAL HISTORY
Petitioner was convicted of Robbery in the Second Degree on June 27, 1994, and was sentenced to an indeterminate term of incarceration of fifteen years to life. Petitioner was paroled from prison on post release supervision back into the community on or about July 24, 2007.
According to Petitioner, he was released to parole supervision on July 20, 2007. Respondent contends Petitioner was released to parole supervision on July 24, 2007. Both Violation of Release Reports indicate that Petitioner was released to parole on July 22, 2008. Two separate forms, both entitled "Certificate of Release to Parole Supervision" and containing what appears to be Petitioner's signature, are dated July 23, 2007. The exact release date is not germane to this Court's decision on the writ.
The terms of Petitioner's release to parole supervision required him to comply with certain express conditions; these conditions were set forth in writing and Petitioner was required to acknowledge his understanding and consent to the terms in writing. On July 23, 2007, Petitioner agreed, inter alia, that he would not possess a firearm, would check in with his parole officer at designated times, would not leave the State of New York without written permission from his parole officer, and would not possess or use any drug or drug paraphernalia. Petitioner also agreed that he would not violate the law and would notify his parole officer immediately any time he was in contact with or arrested by any law enforcement agency. See Conditions of Release contained in Certificate of Release to Parole Supervision, dated April 4, 2007 (hereafter "Rules Governing Parole"), annexed as Exhibit A to Aff. in Opp.
On February 3, 2011, Petitioner was arrested in Bronx County for Criminal
Possession of Stolen Property in the Fifth Degree. Six days later, on February 9, 2011, Petitioner was arrested again, this time in New York County, for Criminal Possession of Stolen Property in the Fifth Degree.
Respondent contends that Petitioner currently is incarcerated awaiting trial on these cases and, as a result, the writ must be dismissed. On April 14, and 18, 2011, Petitioner pleaded guilty to one count of Petit Larceny, PL 155.25, in each of the Bronx County and New York County cases, receiving sentences of 60 days and 30 days, respectively. Petitioner already has completed each of those sentences. Therefore, the only custodial hold on Petitioner at this time is the revocation of his prior parole.
On February 10, 2011, the DOP issued a parole warrant against Petitioner. On February 14, 2011, pursuant to Executive Law § 259-i(3)(c)(iii), the warrant was executed and, simultaneously with the execution of the warrant, Petitioner was personally served with Notice and the First Violation Report.
The Notice of Violation indicates that a preliminary hearing as to the alleged parole violations was scheduled for February 23, 2011. The Notice also sets forth Petitioner's rights in connection with the alleged parole violation, lists the preliminary hearing date and also contains a section in which the alleged parole violator may opt to waive his right to a preliminary hearing as to the parole violation charges against him by checking off a box on the Notice.
The First Violation Report lists nine separate charges alleging that Petitioner violated conditions of his parole. The third charge, number 3, provides, in relevant part that:
Davis, Allen violated Rule #8 of the Rules Governing Parole in that on 2-9-11 at about 6:45 p.m. in the vicinity of 1276 Lexington Avenue, Manhattan, NY the subject was observed in front of an ATM soliciting for U. S. Currency while doing so he was impeding pedestrians from using the ATM.
See First Violation Report, annexed as Exhibit B to the Verified Petition for Writ of Habeas Corpus.
The day that Petitioner was served with the Notice and First Violation Report, February 14, 2011, Petitioner executed the written waiver of his right to have a preliminary hearing as to those charges. In this case, there is no dispute that Petitioner indicated that he was waiving his right to have a preliminary hearing as to those charges in the First Violation Report by placing a checkmark in the appropriate box. See Exhibit A to Verified Petition.
As noted above, courts have determined that a valid waiver of the right to a preliminary hearing — knowing, intelligent and voluntary — is accomplished when an alleged parole violator checks off a box on the notice. See, e.g., People v. Melendez, 214 AD2d 301, 302 (1st Dept. 1995) (acknowledging that such waiver ordinarily is established by showing that a defendant checked off the appropriate box on the notice).
On or about March 5, 2011, more than two weeks after the warrant already had been executed, Petitioner was served by mail with a second Violation of Release Report (the "Second Violation Report"). This Report contained 10 charges, eight of which are the same or substantially the same as those contained in the First Violation Report. However, two additional charges appear in this Second Violation Report that were not in the First Violation Report. In addition, the allegations set forth in "Charge 3" of the First Violation Report are not in the Second Violation Report.
The Second Violation Report contains the following charges, numbered 3 and 4:
CHARGE #3:
DAVIS, Allen violated Rule #8 of the Rules Governing Parole in that on 2-9-11 at about 3:25 p.m. at a Duane Reade located at 625 8th Avenue, Manhattan, NY the subject was observed by the security guard removing and concealing miscellaneous items from the store without paying.
CHARGE #4:
DAVIS, Allen violated Rule #8 of the Rules Governing Parole in that on 2-9-11 at about 3:25 p.m. at a Duane Reade located at 625 8th Avenue, Manhattan, NY the subject did commit Petit Larceny by removing property from the store without paying for it and without permission or authority to do so.
See Second Violation Report, annexed as Exhibit C to the Verified Petition.
Charge 2 in this Second Violation Report also is slightly different from Charge 2 in the First Violation Report, in that the Second Violation Report, after indicating, as had the First Violation Report, that Petitioner "failed to inform his parole officer that he had police contact on 2-9-11," contains the following additional language: "and that he was arrested for Petit Larceny and CPSP 5th Degree." Id.
Petitioner contends he received the Second Violation Report by certified mail. Respondent does not dispute that Petitioner was sent this Second Violation Report by mail.
The DOP did not hold a preliminary hearing as to the charges contained in the First Violation Report or the Second Violation Report and issued a finding that probable cause existed to believe that Petitioner had violated the conditions of his parole.
On April 7, 2011, the DOP held the parole violation hearing. The DOP determined that the conditions of parole had been violated and Petitioner's parole was revoked and Petitioner was re-incarcerated.
At the hearing, Petitioner pled guilty to violating Charge Number 1 against him. The fact that this charge is not one of the materially different charges in the Second Violation Report is not germane to the determination of a violation of Petitioner's substantive rights. Had Petitioner had an opportunity to have a preliminary hearing as to all of those charges, he may never have had a revocation hearing or have entered such a plea. The Court simply cannot speculate as to the possible outcome. See, e.g., Ms. B. v. Mr. K., 158 Misc 2d 817, 819 (Family Ct., Ulster Co. 1993) (court cannot speculate as to how hearing examiner might have decided case if unexpurgated testimony had been given).
Indeed, if the Court were to consider the arguments of the DOP — that the parole violation would have been established — it could lead to the DOP violating the due process rights of alleged parole violators with impunity should a colorable argument exist with respect to success on the merits. See Dunaway v. New York, 442 U.S. 200, 219 (1979) (to admit petitioner's confession after illegal detention would allow "law enforcement officers to violate the Fourth Amendment with impunity, safe in the knowledge that they could wash their hands in the "procedural safeguards" of the Fifth"), quoting Comment, 25 Emory L. J. 227, 238 (1976); see also, Dunaway, at 221(Justice Stevens, concurring)(". . . justification for the [rule] is to motivate the law enforcement profession as a whole . . . to adopt and enforce regular procedures that will avoid the future invasion of the citizen's constitutional rights."). Petitioner's due process rights cannot be enforced by second-guessing the potential results. See Section IV(C)(2).
II. DUE PROCESS CONSIDERATIONS
It is well settled that a parolee has a valuable liberty interest which must be afforded the protections of the Fourteenth Amendment of the United States Constitution. Morrisey v. Brewer, 408 U.S. 471, 481-82 (1972). In Morrisey, the Supreme Court held that due process requires, at a minimum, that, once a parolee is arrested on a parole violation, a preliminary hearing be held when information is fresh and sources are available, to determine if there is probable cause or reasonable ground to believe that the arrested parolee has violated a condition of parole. Id. at 485. This hearing must be held as promptly as possible before an independent hearing officer without supervisory responsibility for the parolee. Id.
The Supreme Court further mandated that the parolee be given notice of the preliminary hearing and its purpose, which notice should state what parole violations have been alleged to have been violated, and that, at the hearing, the parolee must be permitted to appear and speak in his own behalf and to bring letters, documents, or individuals who can give relevant information to the hearing officer. Id. at 486-87.
III. RELEVANT STATUTORY PROVISIONS
In New York, these same due process requirements have been codified in the Executive Law which governs the procedures by which parole may be revoked. Strict adherence to time limits for the holding of the preliminary hearing and subsequent final revocation hearing is required by statute. People ex rel. Johnson v. New York State Board of Parole, et al., 71 AD2d 595, 595 (1st Dept. 1979) (statute should be strictly construed because "legislative purpose was to create a time period beyond which there was to be no delay"); People ex rel. Gonzalez v. Dalsheim, 52 NY2d 9, 13 (1980) (legislature mandates preliminary revocation hearing be held within 15 days of execution of warrant); Matter of White v. New York State Division of Parole, 60 NY2d 920, 922 (1983) (failure to hold preliminary hearing within time period prescribed by statute requires dismissal of parole violation warrant).
When a parole officer has reasonable cause to believe that a parolee has violated a condition of his parole, he may report such facts to a member of the board of parole, or to any officer of the department designated by the board, who may then issue a warrant for the arrest of the parolee. Executive Law § 259-i(3)(a)(i) Within three days of the execution of the warrant, the alleged violator must be given written notice of the time, place and purpose of a preliminary revocation hearing. Executive Law § 259-i(3)(c)(iii). This notice must inform the alleged violator of the conditions of parole or post-release supervision which are alleged to have been violated, and in what manner, and must advise the parolee that, at such hearing, he or she has the right to appear and speak in his or her own behalf; that he or she has the right to introduce evidence and present witnesses; and that he or she has the right to confront the witnesses against him or her. Id.
The statute prescribes certain situations in which the notice may be given within 5 days of execution of the warrant. See Executive Law § 259-i(3)(c)(iii). None of those circumstances exist here.
Within fifteen days of execution of the warrant, a preliminary revocation hearing must be held before a hearing officer designated by the board of parole, (Executive Law § 259-i(3)(c)(i)), unless such hearing is expressly waived by the alleged parole violator. Executive Law § 259-i(3)(d).
If a preliminary hearing is held and the hearing officer finds that there is probable cause to find that the parolee has violated a condition of parole, or if the preliminary hearing is waived by the parolee, the parolee may then be held until a final revocation hearing is held. Executive Law § 259-i(3)(d). If no waiver or probable cause finding is made, the notice of violation must be dismissed and the parolee restored to supervision. Executive Law § 259-i(3)(c)(vii).
The final revocation hearing must be held within 90 days of the probable cause determination. Executive Law § 259-i(3)(f)(i).
The time limit may be extended where an alleged violator requests or consents to a postponement or if an alleged violator's actions preclude the prompt conduct of such proceedings. Executive Law § 259-i(3)(f)(i). Such circumstances did not occur here.
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
There is no dispute that Petitioner was served with two Violation Reports, one simultaneous with the warrant and the other 19 days later. The First Violation Report was accompanied by a Notice, which contained the waiver of right to a preliminary hearing. Petitioner did, in fact, execute that waiver as to his right to a preliminary hearing on those charges. There also is no dispute that Petitioner was served only one Notice, which accompanied the First Violation Report. No notice or form with a waiver of right to a preliminary hearing accompanied the Second Violation Report.
Respondent claims that only one notice and one waiver of a right to a preliminary hearing was required in this matter as the differences between the charges contained in the two Violation Reports are merely to correct technical defects For the reasons set forth below, the Court finds that there are material differences between the charges contained in the First Violation Report and those in the Second Violation Report such that the Second Violation Report is not merely a correction to the first, but a new Violation Report. As this Second Violation Report was served 16 days after the statutorily required time period of three days after the execution of the warrant, this notice to Petitioner was untimely.
Even if this Second Violation Report had been timely, Petitioner never waived his right to a preliminary hearing with respect to the allegations in the Second Violation Report and, as a hearing was never held, Petitioner's right to such hearing was violated.
A. The Charges in the Two Reports are Materially Different
The differences in the charges contained in the two Violation Reports are material such that the Second Violation Report is a not simply an amendment or correction of the First Violation Report. Indeed, the Second Violation Report contains previously unalleged allegations of violations of the conditions of parole.
As noted earlier, the First Violation Report alleged that Petitioner had committed a variety of parole violations listed as charges numbered 1 through 9, including charge number 3 which alleges that Petitioner was panhandling in front of a Citibank on Lexington Avenue on February 9, 2011.
The Second Violation Report, which contains ten charges, includes all those same charges from the First Violation Report except for the panhandling charge (Charge 3 in the First Violation Report). However, in addition to alleging that Petitioner violated the charges that had been contained in the First Violation Report (numbered 1 and 2, and 5 through 10 in the Second Violation Report), the Second Violation Report also includes two additional charges, numbered in the Second Violation Report as Charges 3 and 4.
These charges are completely unrelated to any of the charges in the First Violation Report and allege that Petitioner had violated Rule #8 of the Rules Governing Parole in that he had stolen items from a Duane Reade on 8th Avenue on February 9, 2011.
The First Violation Report, which accompanied Petitioner's waiver of his right to a preliminary hearing, fails to allege that Petitioner violated the conditions of his parole with respect to the Duane Reade incident listed in the Second Violation Report. See Executive Law § 259-i(3)(c)(iii) (notice must state the manner in which parole conditions are alleged to have been violated); see also People ex rel. Levy v. Walters, 87 AD2d 620, 620 (2nd Dept. 1982) (petitioner is entitled to not only timely notice, but also informative notice, detailing the charges against him).
Allegations of panhandling in one location at a prescribed time of day are materially different from allegations that Petitioner stole property at a different location and at a different time of day. See People ex rel. Plock v. Warden, Rikers Island Corr. Facility, Index No. 75160-07 (Sup. Ct., Bronx Co. November 16, 2007), at p. 3 (allegation in first notice that alleged parole violator had possessed heroin at a specific time and place bore no relationship to the three new charges contained in the second notice).
Although seven of the charges in the two Violation Reports are substantially the same, two new charges have been alleged, one previous charge was deleted and one charge was slightly modified. The addition of two new charges in the Second Violation Report, and the modification of another charge, make the difference between the two Violation Reportsmaterial and substantive, not simply a correction of technical defects. Plock, at p. 3.
Charge 2 in the Second Violation Report was amended from that same charge in the First Violation Report to add that, in addition to Respondent's failure to inform his parole officer that he had police contact on February 9, 2011, he failed to inform the parole officer "that he was arrested for Petit Larceny and CPSP 5th Degree." Charge 6 in the First Violation Report, which appears as Charge 7 in the Second Violation Report, included the punctuation and words ", to wit:", which do not appears in Charge 7 in the Second Violation Report.
Respondent's contention that Petitioner's waiver of his right to a preliminary hearing was "knowing" because Petitioner had knowledge of his own arrests even though they were not listed as alleged violations in the First Violation Report, is unavailing. See Levy v. Walters, 87 AD2d at 620 (petitioner entitled to informative notice detailing charges against him).
For these reasons, the Court finds that this Second Violation Report is not a correction of the First Violation Report but, rather, a completely separate report to Petitioner alleging violations of his parole.
B. The Untimely Notice of New Allegations Requires Restoration of Petitioner to Parole Status
Executive Law § 259-i requires that an alleged parole violator be given notice of the alleged parole violations and the date of the scheduled preliminary hearing within three days of the execution of the warrant. Executive Law § 259-i(3)(c)(iii).
The statutory notice requirements mandate that the notice be timely and informative; it must inform Petitioner of the charges against him. People ex rel. Levy v. Walters, 87 AD2d at 620.
Although failure to strictly adhere to this three day notice period has not been deemed fatal to parole violation proceedings (unlike the strict adherence to the 15 day period in which a preliminary hearing must be held), it is axiomatic that an alleged parole violator must receive notice of the allegations against him prior to the preliminary hearing. See e.g., People ex. Rel. Washington v. N.Y.S. Division of Parole, 279 AD2d 379, 380 (1st Dept. 2001); People ex rel. Williams v. Walsh, 241 AD2d 979, 979 (4th Dept.), app. denied, 90 NY2d 809 (1997). In this case, on February 14, 2011, simultaneously with the warrant, Petitioner was noticed that the preliminary hearing would be held on February 23, 2011. The only information that Petitioner received about allegations that he violated his parole conditions by committing petit larceny at a Duane Reade store was on March 5, 2011, in the Second Violation Report, received by Petitioner 10 days after the February 23rd date for preliminary hearing.
In light of the foregoing, the Court finds that Petitioner did not receive timely notice of the allegations in the Second Violation Report. People ex Rel. Ramon Herrera v. Warden, Anna M. Kross Ctr, N.Y.S. Div. of Parole, 2001 NY Slip Op 40328U, 2001 NY Misc. LEXIS 597 (Sup. Ct., Bronx Co. 2001) (DOP's failure to properly serve, or reasonably attempt to serve, petitioner with the Notice of Violation and Violation of Release Report prior to preliminary hearing violated his statutory rights); People ex rel. Willis v. Travis, 178 Misc 2d 469, 473-74 (Sup. Ct., Nassau Co. 1998).
C. Even if Petitioner had Received Timely Notice, Petitioner's Right to a Preliminary Hearing was Violated
Even if the Second Violation Report had been served within the statutorily prescribed three day period (or even before the scheduled date for the preliminary hearing), Petitioner's right to a preliminary hearing was violated. An alleged parole violator has a right to be present at such preliminary hearing. Matter of White, 60 NY2d at 922; People ex rel. Johnson v. New York State of Parole, 71 AD2d at 595.
Although the alleged parole violator may waive his right to the preliminary hearing, any such waiver must be knowingly, voluntarily and intelligently made. Matter of White, 60 NY2d at 922; People ex rel. Moll v. Rodriguez, 132 AD2d 766, 767 (3rd Dept.), app. denied, 70 NY2d 611 (1987); Johnson v. Zerbst, 304 U.S. 458, 464 (1938), overruled in part on other grounds by Edwards v. Arizona, 451 U.S. 477 (1981) (courts indulge every reasonable presumption against waiver of fundamental constitutional rights; waiver will not be presumed).
Here, with respect to the Second Violation Report, no waiver occurred and no preliminary hearing was ever held.
1. Respondent has Failed to Show That Petitioner Waived His Right to A Preliminary Hearing
Respondent has failed to establish that Petitioner knowingly, intelligently and voluntarily waived his right to a preliminary hearing with respect to the alleged parole violation charges.
When there is an issue as to whether there has been a waiver of a right to a preliminary hearing, the Respondent must initially establish that such waiver occurred. People v. Melendez, 214 AD2d 301, 302 (1st Dept. 1995) (proponent has burden of proving waiver of constitutionally guaranteed due process entitlement, such as the preliminary hearing right in this case; this is usually done by producing a writing which clearly and unambiguously documents intent to relinquish the right), citing Johnson v. Zerbst, 304 U.S. at 464. Here, the People have not met that initial burden. Id.
As noted herein in Section IV(A), supra, the allegations in the two Reports are materially different. Thus, the waiver executed by Petitioner as to the First Violation Report, executed on the Notice he was served with on February 14, 2011, is invalid. Petitioner was entitled to a preliminary hearing as to the additional charges in the Second Violation Report. Plock at p. 3; People ex rel. Jackson v. Warden, Otis Corr. Center, Index No. 251894-09 (Sup. Ct., Bronx Co. September 16, 2009) at p. 2-3 (no knowing and voluntary waiver where not shown petitioner received correct charges before he signed waiver).
The Notice shows only Petitioner's waiver of a preliminary hearing as to the charges contained in the First Violation Report.
Not only is there no waiver of a right to a preliminary hearing with respect to the charges in the Second Violation Report, the Petitioner did not even get the Second Violation Report until after the scheduled preliminary hearing date already had passed.
Thus, Respondent has failed to show that Petitioner knowingly, intelligently and voluntarily waived his right to a preliminary hearing as to the charges contained in the Second Violation Report. As no preliminary hearing was held and no waiver occurred, Petitioner's right to such a hearing was violated.
2. The Outcome of Any Parole Hearing is Irrelevant to the Determination of a Violation of Petitioner's Substantive Rights
Respondent's contention that probable cause would have been established at a preliminary hearing had it been held is irrelevant to the Court's determination that Petitioner's substantive right to a preliminary hearing was violated. See, e.g., Byrne v. Hammock, 97 AD2d 823, 823 (2nd Dept. 1983)(petitioner, found at hearing to have committed alleged parole violations, entitled to be restored to parole status due to State's failure to produce him at hearing within 15 days); People ex rel. Austin v. New York State Bd. of Parole, 102 AD2d 900, 900 (2nd Dept. 1984).Moreover, this Court cannot speculate as to what could have or would have happened had Petitioner been given the opportunity to waive his preliminary hearing or what would have happened at any such hearing. Ms. B. v. Mr. K., 158 Misc 2d at 819.
See Footnote 4, supra.
V. CONCLUSION
The Second Violation Report contains materially different allegations than the First Violation Report. Respondent's service of that Second Violation Report, nineteen days after the execution of the warrant and 10 days after a scheduled preliminary hearing date, violated Petitioner's due process rights, requiring that the writ be granted.
Moreover, as Respondent has failed to show that Petitioner waived his right to a preliminary hearing as to the charges in the Second Violation Report, and Respondent did not hold a preliminary hearing as to those charges, Petitioner's due process rights were violated on that ground as well. People ex rel. Matthews, 95 NY2d at 643 (failure to conduct a timely preliminary revocation hearing violates the parolee's right to due process).
Accordingly, the Petition is granted and Petitioner is to be restored to parole status.
The Court considered the following in deciding the motion: Verified Petition for Writ of Habeas Corpus, verified by Abigail Rubinstein, Esq., on March 17, 2011, and exhibits thereto; Affirmation of Michael Arcati, Esq., Assistant Attorney General, in Opposition to Petition for Writ of Habeas Corpus, dated April 13, 2011, and exhibits thereto; and Affirmation of Elon Harpaz, Esq., in Reply to Opposition to Writ of Habeas Corpus, dated April 20, 2011.
This constitutes the Decision and Order of this Court.