Opinion
Index No. 260164-19
05-21-2019
THE PEOPLE OF THE STATE OF NEW YORK ex rel. DSHAUNTEL ROBINSON, v. WARDEN, ANNA M KROSS CENTER & NEW YORK STATE CORRECTIONAL DEPARTMENT &COMMUNITY SUPERVISION, Respondents.
Unpublished Opinion
DECISION & ORDER
April A. Newbauer, J.
Relator Robinson ("Robinson") petitions for a writ of habeas corpus to vacate the parole violation warrant against him, claiming that the Hearing Officer Cindy Morro improperly held his preliminary parole revocation hearing in absentia in violation of the Due Process Clause of the Fourteenth Amendment, the New York State Constitution and the New York Executive Law §§ 259-1 (3)(c)(i) and (iv). The respondents contend that Robinson's claims are without merit because the Hearing Officer Cindy Morro's decision to conduct the preliminary hearing in absentia was based on a valid waiver. For the reasons stated below, the parole warrant #755883 is dismissed and Robinson's request to be restored to parole status is granted, provided that Robinson is not presently incarcerated on the basis of another warrant or commitment not predicated on the violation of parole.
The court reviewed the following papers: Writ of Habeas Corpus; Verified Petition for a Writ of Habeas Corpus and Affirmation in Support of Writ with Exhibits A-C; Affirmation in opposition to a verified petition for a writ of habeas corpus and exhibits A-G; Affirmation in Reply to opposition to writ with Exhibits A-D.
Facts
On July 22, 2010, petitioner Robinson was convicted in New York County Supreme Court of robbery in the second degree and sentenced to a determinate sentence of eight years' incarceration and five years' post release supervision. On June 27, 2018, Robinson was released to parole supervision. Robinson agreed to adhere to certain conditions that the Department of Corrections and Community Supervision ("DOCCS") imposed upon his release with the [ understanding that his failure to abide by these conditions would result in revocation of his i parole. Robinson will have reached the maximum expiration date of his sentence on February 28,2023.
On November 27, 2018, Robinson was declared delinquent as an absconder and charged with violating three conditions of his release to parole supervision. On December 20, 2018, a parole violation warrant # 755883 was issued. On February 14, 2019, the warrant was lodged and Robinson was served with a copy of the Violation of Release Report and Notice of Violation. Robinson acknowledged service, and a preliminary hearing was scheduled for February 25,2019. Robinson checked the box, initialed and signed the form indicating that he' wished to have a preliminary hearing.
On February 28, 2019, the preliminary parole revocation hearing was held without Robinson being present. Robinson was not produced for the preliminary hearing. An Undelivered Defendant Form dated February 28, 2019, was produced to Hearing Officer Cindy Morro. On this form, the defendant's name appears, as well as the date, a book and case number and the reason "refused with C-71 intake Capt. Sanchez." The form also reflects in the box labeled "signature of defendant" in handwriting, "unable to sign." It appears to be in the same handwriting signature of a witness the letter, "S" and witness Capt. Sanchez. In the box labeled "prepared by" it reads "Randolph CO 10155" and this appears to be in the same handwriting. Neither Captain Sanchez nor Correction Officer Randolph appeared at the hearing. A Parole Officer represented DOCCS and Robinson was represented by counsel. Robinson's counsel objected to proceeding without him because of the hearsay statement on the "Undelivered Defendant" form generated by DOCCS which indicated that Robinson refused to attend the preliminary hearing. Counsel argued that Robinson had a due process right to be present at the preliminary hearing, to confront the witnesses against him, and testify and present evidence on his own behalf. There was no further information concerning why Robinson was absent. Counsel for Robinson even requested a one day adjournment for Robinson to be produced for the hearing, chargeable to his client, but the Hearing Officer denied the request.
Based upon the hearsay information contained in the "Undelivered Defendant" form, Hearing Officer Cindy Morro concluded that Robinson voluntarily, knowingly and intelligently waived his right to appear. Over counsel's objection, Hearing Officer Morro proceeded with the i hearing in absentia. At the conclusion of the hearing, the hearing officer found probable cause; that Robinson had violated a condition of parole by failing to report on December 19, 2018 as instructed. The final hearing was scheduled for March 12, 2019. The papers do not indicate whether a final hearing has taken place.
Findings
A parolee's right to be present and heard at a parole revocation hearing is a fundamental due process right. See Morrisey v Brewer, 408 U.S. 471, 488-489 (1972). Robinson's petition for relief from a parole warrant for denial of a preliminary hearing is granted for the following reasons.
DOCCS bears the burden of establishing a prima facie case that under the totality of the circumstances Robinson made a knowing, voluntary and intelligent waiver. See People ex rel. Melendez v. Warden, 214 A.D.2d 301 (1st Dept. 1995). A waiver is knowing and intelligent when made after the rights concerning the hearing and the effect of the waiver are explained to the parolee so that he or she is aware of the consequences of waiving the preliminary hearing. See People ex rel. Melendez v. Warden, 214 A.D.2d at 302; see also People ex rel. Moll v. Rodriguez, 132 A.D.2d 766, 767-768 (3rd Dept. 1987). A writing clearly and unambiguously documenting the individual's intention to relinquish his or her right to a preliminary hearing is sufficient to establish a waiver. See People ex rel. Melendez v. Warden, 214 A.D.2d at 302. The burden then shifts to the parolee to demonstrate that the waiver was defective because it was uninformed, unintelligent and/or involuntary. Id.
A parole revocation hearing may not be held in absentia unless the parolee voluntarily, • knowingly and intelligently waives his right to be present. See People ex rel Wyche v. NYS Div of Parole, 66 A.D.3d 541, 542 (1st Dept 2009); see also People ex rel Quinones v. NYS Bd. Of Parole, 66 N.Y.2d 748 (1985); People ex rel. Miller v. Walters, 60 N.Y.2d 920, 922 (1983). "An intentional refusal to attend a preliminary revocation hearing establishes the waiver of an alleged violator's right to be present and permits the hearing to proceed without him." People ex rel McKay v Sheriff of County of Rensselaer, 152 A.D.2d 786, 787 (3rd Dept 1989), citing Matter of White v New York State Div of Parole, 60 N.Y.2d 920, 922 (1983), appeal denied, 74 N.Y.2d 616). However, the decision to proceed in absentia may not be based on hearsay information that a -parolee intentionally refused to attend the hearing. People ex rel McKay v. Sheriff of County of Rensselaer, 152 A.D.2d at 787 (3d Dept 1989), citing People ex rel Griffin v Walters, 83 A.D.2d 618, 619 (2d Dept 1981). Any ambiguities or uncertainties as to whether there was a knowing, j intelligent and voluntary waiver of the right to be present must be resolved in the parolee's favor. See Johnson v Zerbst, 304 U.S. 458, 464 (1938); see also People ex rel Abreu v Warden, Index No 250516-17 (Sup Ct Bronx Co 2017) (Clancy, J.) A parolee who waives his right to a preliminary hearing during a final hearing, however, may not thereafter challenge the failure to be granted a preliminary hearing. See People ex rel. Walker v. Sullivan, 128 A.D.2d 572 (2nd Dept. 1987).
It is undisputed that petitioner elected to have a preliminary hearing. Based on nothing more than the conclusory hearsay statement written on an "Undelivered Defendant" form the hearing officer concluded that parolee voluntarily, knowingly, and intelligently refused to attend the hearing. The court recognizes that several appellate courts have held that an "Undelivered Defendant" form may constitute sufficient evidence of a waiver of the right to be present at a preliminary hearing. See e.g, People v ex rel Scott v Travis, 251 A.D.2d 264 (1st Dept 1998) (where form included the words "I don't want to go" and was signed by the inmate); accord People ex rel Herrera v Eastmond, 290 A.D.2d 365 (1st Dept 2002)(signed by petitioner); People ex rel McKay, 152 A.D.2d 786 (3d Dept 1989)(signed by petitioner). However, there is a crucial distinction in this line of cases - namely that the "Undelivered Defendant" forms were signed by the inmates, thereby corroborating a refusal to appear. In this case, the "Undelivered Defendant" form does not establish a voluntary, knowing, and intelligent waiver of the right to be present for the preliminary hearing. The form simply reads that Robinson was "unable to sign" and no further information was provided. In addition, the hearing officer made no effort to ascertain the reason for Robinson's supposed inability to sign this document. Robinson's affidavit asserts that the statement "unable to sign" is not true. Without petitioner's signature, the form provides nothing more than a conclusory assertion, established by double hearsay, that parolee refused to appear for the hearing. As such, the form is not a facially valid waiver.
Moreover, there was no evidence presented that the correction officer who prepared the form had personal knowledge or observed Robinson refusing to appear. The form does not contain any substantive information regarding his alleged refusal. Respondents did not provide either a witness or an affidavit from the captain or the correction officer to attest to the facts or to explain the notations on the Undelivered Defendant form. The New York City Department of Correction imposes an additional requirement of a countersignature by a second correction witness on the "Undelivered defendant" form to corroborate the purported refusal. The form presented in this case does not contain any signature, let alone the two "signatures" as required by Operation Order No. 13/87 at page 3. The form contains the printed last names of a captain and a correction officer and it appears to be in the same handwriting, without their complete names and signatures. In any event, while a double-signature requirement can corroborate a refusal to sign the form, it in no way establishes that petitioner refused to appear at the hearing, let alone that he voluntarily, knowingly and intelligently chose to do so. (People ex rel Wyche, 66 A.D.3d at 542). The "Undelivered Defendant" form fails to establish a valid waiver. Given the complete absence of any non-hearsay evidence to establish that petitioner refused to attend the preliminary hearing, respondent has failed to demonstrate a knowing and intelligent waiver of the right to be present.
Absent a clear and unambiguous waiver, Robinson's right to a preliminary hearing remains undisturbed. Therefore, Robinson's due process rights were violated by the denial of a preliminary hearing within fifteen days of the issuance of a parole warrant as required by New York Executive Law § 259-i. Accordingly, the writ of habeas corpus is sustained. The parole warrant is vacated and petitioner is ordered to be released and restored to parole supervision provided that no other valid hold exists.
This decision shall constitute the order of this court.