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People ex Rel. Goodman v. N.Y. State Div. of Parole

Supreme Court of the State of New York, Bronx County
Sep 21, 2005
2005 N.Y. Slip Op. 51510 (N.Y. Sup. Ct. 2005)

Opinion

2125/05.

Decided September 21, 2005.

The Legal Aid Society (Lester Helfman and Elon D. Harpaz, of counsel), New York City, for Petitioner/Relator.

Eliot Spitzer, Attorney-General of the State of New York (Efthimios Parasidis, of counsel), New York City, for Respondents.


The relator, Shea Goodman, was convicted of Robbery in the First Degree in Supreme Court, Richmond County — and, on October 19, 1993, was sentenced to an indeterminate term of incarceration of five to fifteen years in State Prison. He was released to parole supervision in July 2003, and was arrested and charged with violating his parole conditions in June 2005. By way of a Writ of Habeas Corpus, he now seeks vacatur of his parole violation and restoration to parole supervision. After agreeing to and signing the standard twelve conditions imposed by the New York State Division of Parole upon release (see Certificate of Release to Parole Supervision, dated July 14, 2003, attached to Respondents' Affirmation in Opposition as Exhibit A, p. 1) as well as nine additional special conditions of parole (Certificate of Release, supra, Exhibit A, p. 2), relator was released to parole supervision on July 16, 2003. Among those special conditions were the following requirements: submission to substance abuse testing, as directed by the parole officer; participation in a substance abuse treatment program, as directed by the parole officer; participation in an alcohol abuse treatment program, as directed by the parole officer.

In 2004, after two violations for failure to report to his parole officer, relator was placed into the residential phase of the Willard Drug Treatment Campus Program. He successfully completed that program on March 1, 2005, and was then directed to start an intensive out-patient after-care phase at Daytop Village, Staten Island, NY

On or before May 18, 2005, relator was charged with using a controlled substance — to wit, cocaine — without proper medical authorization. Rather than revoking parole, the Division attempted to work with relator and added a new special condition on June 3, 2005. That new condition (hereinafter referred to as Rule No. 13) required Goodman to enter and participate in a Detoxification Program at Victory Memorial Hospital in Staten Island, and to complete the Program, including after-care at the Addiction Institute, New York, NY Subsequently, on June 16th, relator was arrested in his home on Parole Violation Warrant 398812 and served with a copy of the Parole Division's Notice of Violation and Violation of Release Report (see Affirmation in Opposition, Exhibits B and D). Those documents set forth two charges against relator, which are as follows:

Charge #1

Shea Goodman violated Rule #13 Special Conditions written conditions, in that, on 6-3-05 and thereafter the subject subject had a special condition to enter Victory Memorial Detox.

Drug Program and participate and complete program; he has failed to comply with this special condition.

Charge #2

Shea Goodman violated Rule #2 of the Rules Governing Parole, in that, on 6-8-05 and thereafter the subject failed to make his office report as scheduled.

On June 27th, a preliminary parole revocation hearing was conducted at Rikers Island, NY "to determine whether or not the Division of Parole had probable cause or a reason to believe" that the relator violated one or more of the conditions of his release in an important respect. (Hearing Minutes, annexed to Respondents' Affirmation in Opposition as Exhibit F, p. 3). After hearing the testimony of the Division's sole witness, Parole Officer Keith Miller, and viewing the few exhibits that were admitted into evidence, the Hearing Officer determined that probable cause was established with respect to the first charge and remanded the relator to continued custody pending a final parole revocation hearing. (The Division elected not to go forward with respect to Charge #2, and no evidence was presented as to that second charge.)

The relator sets forth essentially two grounds in support of the instant Petition. First, it is contended that the finding of probable cause by the Parole Hearing Officer was not supported by sufficient evidence and that the evidence actually shows that the relator did complete the detoxification program at Victory Memorial Hospital. Secondly, the relator contends that evidence was admitted at the hearing over objection with respect to an alleged failure to complete follow-up treatment after the discharge from Victory Memorial. In relator's view, such evidence was not only irrelevant in view of the wording of the Division's original Notice, which specified only the Victory Memorial Detoxification Program by name, but it also constituted an impermissible change in the Division's theory of the violation — without advance notice and in violation of due process of law.

With respect to the relator's first argument, the court notes that the only evidence at the hearing of a violation of the June 3rd special condition is a single statement by P.O. Miller to the effect that he spoke to relator's permanent counselor, Mr. Hickey, who "indicated . . . that [relator] was supposed to leave the Victory Memorial Treatment Program on the 7th [and that he] was supposed to go directly into the program [at the Addiction Institute]." (Hearing Minutes, p. 8) Mr. Hickey, who was not identified at the hearing by a first name or an address or telephone number, did not testify. There were also no witnesses from either Victory Memorial Hospital or the Addiction Institute, and no letters, documents, or affidavits from Mr. Hickey or anyone else at the Hospital or the Institute.

Although hearsay evidence is not per se inadmissible at a preliminary revocation hearing, a finding of probable cause must be based on substantial evidence ( People ex rel. Vega v. Smith, 66 NY2d 130; People ex rel Fryer v. Beaver, 292 AD2d 876; People ex rel. Wilt v. Meloni, 170 AD2d 989). In this case, however, there was no evidence apart from the questionable and unsupported hearsay and a conclusory, unsupported statement from P.O. Miller that the relator refused to complete the Program or attend after-care. The relator had no obligation to testify at the hearing and he did not do so; however, to counter the charge that he did not complete the Detoxification Program at Victory Memorial Hospital, he relied upon evidence that was submitted in the form of a certification of successful completion (see Hearing Minutes, p. 11; see, also, Respondents' Exhibit I and Relator's Exhibit B). The Division did not controvert the veracity or reliability of that certificate and, indeed, acknowledged it. Nevertheless, without prior notice to relator and his attorney and without moving to amend the Notice of Violation, the Division merely shifted gears and contended that relator still violated Special Condition/Rule # 13 by his failure to enter, participate in, and complete the after-care program. It is this "midstream" shift in the Division's theory (and the ultimate finding of probable cause after that shift) which forms the basis of the relator's second argument in support of the Petition.

Irrespective of the general language of Special Condition/Rule # 13 and whatever relator may have agreed to, the consideration of fairness and due process must necessarily turn on the specific nature of the Division's charge, as reflected in the Notice of Violation. If an individual is going to be held responsible for actions or omissions, then that person is entitled to be informed clearly and specifically as to exactly what those alleged transgressions were. (NY Exec. L. § 259-i(3)(vi); Morrissey v. Brewer, 408 U.S. 471).

In this case, the Division claimed that relator "violated Rule # 13 . . . in that on 6-3-05 and thereafter, the subject had a special condition to enter Victory Memorial Detox. Drug Program and participate and complete program; he has failed to comply with this special condition." The Notice of Violation made no mention of any follow-up programs or any programs other than that of Victory Memorial. Nevertheless, the Hearing Officer determined that, irrespective of the specific language in the first charge in the Notice of Violation, relator's failure to attend after-care constituted a violation of Rule #13. It is noteworthy that the Hearing Officer expressed concern over the problematic language of charge #1 (Minutes, pp. 13-14, 19) — nevertheless, it was ultimately determined, in conclusory fashion, that Victory Memorial's Program plus the after-care were all part of the same process, and that the phrase "failure to complete the program" should be construed as a reference to the overall program, not just that of Victory Memorial (Minutes, p. 18).

This court agrees that not every "i" has to be dotted nor every "t" crossed in order for a charge to give adequate notice of a violation. ( In re Gonzales v. N.Y.S. Board of Parole, 193 AD2d 356). However, a charge must be in plain enough language so as to apprise an alleged violator of exactly what it is that has to be defended against. In this case, the relator was left dangling, forced to guess exactly in what manner he allegedly violated Rule #13. If he failed to complete the Victory Memorial Detoxification Program, he could easily have been so advised. But, as we have seen, that program was completed. If, on the other hand, relator failed to complete the after-care, then that is what the charge should have stated. Indeed, a fair reading of the charge in question would lead a reasonable person to only one conclusion — that the "failure to complete program" language, because it comes immediately after the words "Victory Memorial Detox. Drug Program," refers to the antecedent phraseology rather than to some generalized, unspecified program.

It must also be noted that at no time before or during the preliminary hearing did the Division ever move to amend the Notice of Violation to include a specific reference to the after-care program. Moreover, the opportunity afforded by the Hearing Officer to relator's counsel in the middle of the hearing to "take a few minutes to discuss" the subject of after-care with relator (Minutes, p. 20) was too little and too late, catching defense counsel by surprise and without sufficient time to prepare an adequate defense.

There is one additional matter that is of concern to the court. It should be noted that, irrespective of whether the relator did or did not receive adequate notice of a violation, the hearing minutes reveal no evidence of any failure to enter and complete after-care. All that exists in the record is the previously alluded-to statement by the Division's witness, P.O. Miller, which alleged, based upon unverified and questionable hearsay, that the relator left the Victory Memorial Program before June 7th.

When all is said and done, it is questionable on what basis the Hearing Officer could have reached the conclusion that there was probable cause to support the alleged violation. In addition, although the Parole Division's Decision and Summary Form [Respondents' Exhibit E and Relator's Exhibit C] indicates that the Hearing Officer also relied on "Exhibits" in finding probable cause, there is no indication as to which particular exhibits were relied upon and why those exhibits were dispositve of the issue. Indeed, the only exhibits referred to in the hearing minutes and which are now before the court were Parole Division forms, which were in the nature of accusatory instruments rather than documentary evidence of a violation, and the certificate showing relator's completion of the Program at Victory Memorial Hospital.

In the view of this court, there was insufficient evidence at the preliminary hearing to support any finding of probable cause with respect to the Victory Memorial Hospital Detoxification Program. There was also no evidence to support a finding of probable cause with regard to the Addiction Institute after-care program. Moreover, the court finds that due process requires that a relator be given fair and adequate notice of the charges and that not all derelictions on the part of the Division can be regarded as "de minimis technicalities."

Accordingly, the instant Petition is granted and the Writ is sustained. In the absence of any holds or detainers other than for the instant parole violation, it is directed that the relator be released and restored to parole supervision forthwith — subject to his compliance with all conditions and special conditions of parole.


Summaries of

People ex Rel. Goodman v. N.Y. State Div. of Parole

Supreme Court of the State of New York, Bronx County
Sep 21, 2005
2005 N.Y. Slip Op. 51510 (N.Y. Sup. Ct. 2005)
Case details for

People ex Rel. Goodman v. N.Y. State Div. of Parole

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK EX REL. SHEA GOODMAN, Petitioner, v…

Court:Supreme Court of the State of New York, Bronx County

Date published: Sep 21, 2005

Citations

2005 N.Y. Slip Op. 51510 (N.Y. Sup. Ct. 2005)