Opinion
No. 340420–2014.
01-29-2015
The PEOPLE of the State of New York ex rel. Andre RUSHION, Warrant No. 661540 B & C # 888–04–00826, NYSID # 08218388J, Petitioner, v. WARDEN, Rikers Island Correctional Facility, and New York State Department of Corrections and Community Supervision, Respondents.
Simone Petromelis, Esq., for the Petitioner. David Cheng, Assistant Attorney General Counsel, for the Respondent.
Simone Petromelis, Esq., for the Petitioner.
David Cheng, Assistant Attorney General Counsel, for the Respondent.
Opinion
RICHARD LEE PRICE, J.
Petitioner, by writ of habeas corpus submitted October 29, 2014, moves for an order vacating his parole warrant and releasing him from the custody of New York State Department of Corrections and Community Supervision (DOCCS or respondent). Petitioner asserts that he is being illegally detained because DOCCS failed to provide him with a timely preliminary hearing in violation of Executive Law §§ 259–i(3)(c)(i) and (iv), the Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution and N.Y. Constitution, article I, § 6.
Specifically, petitioner claims: (1) his “due process rights were violated by Hearing Officer allowing [respondent] to proceed on another charge after the 15 day statutory deadline, while she reserved decision on the first charge, unable to find probable cause at the time;” (2) his right to a fair and impartial hearing was violated as Hearing Officer's decision to allow [respondent] to continue on a second charge was biased and as such, the Hearing Officer should have recused herself;” (3) his “constitutional and statutory rights to a preliminary hearing which allows him to present a case and challenge [respondent's] case, was not given to him; and (4) “the Hearing Officer erred by going forward with the preliminary hearing without [him] or his counsel” (Verified Amended Petition, ¶¶ 12–15).
Upon review of the parties' respective papers submitted in connection with this matter, the petition is dismissed.
Background and Procedural History
The relevant facts are as follows. In 2008, petitioner was convicted in Supreme Court, New York County, of criminal sale of a controlled substance in the third degree, and sentenced to a determinate prison term of four years imprisonment with four years, nine months and twenty-seven days of post-release supervision. He was released to parole supervision on or about May 6, 2011 and, barring any violations of his conditions of release, his supervision was scheduled to end on March 3, 2016.
On March 13, 2014, petitioner was declared delinquent and charged with violating six conditions of his release. The first and fifth charges alleged that petitioner was not present in his approved residence on March 13, 2014 and March 15, 2014, respectively, during the curfew hours delineated in the conditions of release that he agreed to adhere to.
Parole Warrant No. 661540 was issued on March 18, 2014 and lodged on March 19, 2014. Petitioner was served with a copy of the Violation of Release Report and the Notice of Violation on March 20, 2014. He elected to have a Preliminary Parole Revocation Hearing (“preliminary hearing”), which was originally scheduled to be held on March 31, 2014, but was rescheduled to March 27, 2014, on notice to petitioner.
Hearing Officer Chandra Perry–Patterson presided over the hearing. Petitioner was represented by counsel from the Legal Aid Society, though the hearing officer adjourned the hearing to April 2, 2014 for the assignment of 18–b counsel because of a conflict of interest .
Petitioner had filed complaints against the Legal Aid Society in previous representation.
On April 2, 2014, Hearing Officer Perry–Patterson presided over the hearing, while petitioner was represented by 18–b attorney Eric Sokol (the Legal Aid Society was relieved) and respondent was represented by Parole Officer (“PO”) Jill Robinson. PO Robinson proceeded on the first charge and petitioner pled not guilty. PO Robinson testified that petitioner's initial report was her only contact with him before he was arrested and that, following his arrest, petitioner told her that “he was not [in his approved residence] that day and he acknowledged that” (H.18). PO McLenan testified that she took petitioner's arrival report, discussed the conditions of his release with him, gave petitioner his next report date, told petitioner that he was required to enter his approved residence, Narco Freedom (367 Howard Aveue, Brooklyn), by 4:00 p.m. on March 13, 2014 and informed petitioner of his curfew hours (H.25–26, 28). PO Tutt testified that he visited petitioner's approved residence on March 13, 2014 and was told that petitioner had never arrived and was not in the intake log for the program (H.31–34).
Petitioner then began an argument with his counsel about his right to respond to the allegations against him throughout the proceeding and insisted that the hearing officer explain his right to speak during the hearing, which she did (H.38–42). PO Robinson rested on the first charge and, although Hearing Officer Perry–Patterson reserved decision, she also found the three parole officers credible and determined that respondent had made a prima facie case (H.46, 49–50, 54, 56).
PO Robinson indicated that she was ready to proceed on another charge, when petitioner objected, arguing that PO Robinson could only go forward on one charge (H.56–57). The hearing officer explained that the hearing was not limited to the presentation of only one charge and that PO Robinson could go forward on any charge on which petitioner had been served, but that she would grant respondent an adjournment if he needed more time to prepare (H.57–63). Petitioner continued to object and then alleged that his release paperwork had been incorrectly dated and that he was not released to his approved residence until March 14, 2014 (H.63–64). He then asked for an adjournment for counsel to obtain the document showing that he was not actually released until the day after the alleged violation occurred and to bring in the Chief Administrative Judge to clarify whether respondent can proceed on more than one charge at a preliminary hearing (H.65–66). Counsel told petitioner it would take at least a month to subpoena such paperwork, while petitioner insisted that a Freedom of Information request would take less time to obtain the documentation he sought (H.69–72). Petitioner continued to argue with counsel, until he asked that counsel be relieved (H.72). Hearing Officer Perry–Patterson granted petitioner's request, told petitioner that she would assist in procuring a new attorney for him and adjourned the hearing to April 10, 2014 (H.75).
On April 10, 2014, the preliminary hearing reconvened. Respondent was represented by PO Robinson and Hearing Officer Perry–Patterson told petitioner that she had secured 18–b attorney Percival Clarke to represent him, but petitioner objected because Mr. Clarke was “not to [petitioner's] liking” and he refused his appointment (H.2). The preliminary hearing was adjourned to April 16, 2014, for the reassignment of counsel (H.2–5).
On April 16, 2014, the preliminary hearing continued. Senior Parole Officer Ilene Staniszewski represented respondent, while 18–b counsel Terry DiFilippo represented petitioner. Mr. DiFillipo objected to respondent proceeding on more than one charge at the preliminary hearing and claimed that petitioner had been “treated in a discriminatory manner” and asked that Hearing Officer Perry–Patterson recuse herself for being prejudiced by allowing respondent to proceed on more than one charge (H.6–7). Hearing Officer Perry–Patterson denied petitioner's request, despite his continued insistence that it was improper for her to reserve decision on one charge, while allowing respondent to proceed on another (H.7–9, 13–17).
Respondent elected to proceed on the fifth charge and petitioner again objected before demanding an adjournment to obtain the document he believed would demonstrate the actual date of his release to parole supervision (H.19–25). Counsel moved to be relieved because petitioner was not understanding that even if he successfully obtained a document that demonstrated petitioner was not guilty of the first charge, respondent could establish probable cause on a different charge (H.25). Petitioner insisted that counsel remain on his case (H.25–31, 37). Petitioner's actions became disruptive and corrections officers rushed into the courtroom due to safety concerns. Hearing Officer Perry–Patterson explained to petitioner that he had to be removed from the courtroom because of his behavior. After outlining the events leading up to petitioner's removal, including his repeated dissatisfaction with his attorneys and refusal to accept that obtaining a document to refute the allegations in the first charge would not assist him in refuting the allegations in the fifth charge, the hearing officer decided to proceed with the preliminary hearing in petitioner's absence.
Proceeding on the fifth charge, PO Staniszewski called PO McClenan to testify, in pertinent part, that when she met with petitioner she informed him of the conditions of his parole, the address of his approved residence and that he had to report to the residence by 4:00 p.m. that day (H.39). Detective DeJesus, Manhattan South Narcotics, testified that, on March 15, 2014, he arrested petitioner during a “buy and bust” operation at about 3:55 a.m. in front of 108 7th Avenue, New York, New York (H.40–41).
At the close of the hearing, Hearing Officer Perry–Patterson determined that although probable cause had not been established for the first charge, it had been established for the fifth charge (H.45). Petitioner's Final Parole Revocation Hearing (“final hearing”) was scheduled for April 29, 2014, and was adjourned multiple times for various reasons to October 8, 2014; this Court has not been informed as to whether the final hearing actually occurred on that date.
Conclusions of Law
A preliminary hearing must be “scheduled to take place no later than fifteen days from the date of execution of the warrant” (Executive Law 259–i [3 ][c][iii], [iv] ), unless such hearing is expressly waived by the alleged parole violator (Executive Law § 259–i[3][d] ). There is, however, no requirement that the preliminary hearing actually be completed within that fifteen day period (People ex rel Morant v. Warden, 35 AD3d 208, 209 [1st Dept 2006] ; Emmick v. Enders, 107 A.D.2d 1066, 1067 [4th Dept 1985] ). By statute, the standard at the preliminary hearing is whether there is “probable cause to believe that the ... parolee ... has violated one or more conditions of his ... [release] in an important respect” (Executive Law 259–i[3][c] [iv] ).
Here, petitioner elected to have a preliminary hearing, which, in accordance with the statute, was timely scheduled for March 27, 2014. He contends, however, that the hearing officer improperly permitted respondent to proceed on the charges one at a time, and that doing so “is fundamentally unfair and offends [petitioner's] due process rights” (see Petition, ¶ 18). His claim is unsupported and unavailing. There is simply no requirement that the preliminary hearing be completed within the 15–day period, nor a requirement that respondent announce which charges it intends to proceed on at the outset of the preliminary hearing. Indeed, the Notice of Violation put petitioner on notice of all of the charges he faced at the preliminary hearing; whether respondent chose to proceed on all or one of those charges is a matter of its discretion.
In any event, after the presentment of the first charge on April 2, 2014, respondent was prepared to proceed on further charges the same day (H.56–57), but petitioner objected to the presentation of more than one charge and ultimately fired his attorney; the preliminary hearing was adjourned for the reassignment of counsel. When the preliminary hearing reconvened on April 10, 2014, a new attorney was procured by the hearing officer but rejected by petitioner and the hearing was again adjourned for the reassignment of counsel. “When a preliminary parole revocation hearing has been timely scheduled, or held in whole or in part, and thereafter is adjourned for legitimate reasons, without prejudice to the petitioner, there is no violation of the 15–day limit” (Matter of Emmick v. Enders, 107 A.D.2d 1066, 1067 [4th Dept], appeal dismissed 65 N.Y.2d 1050 [1985] ). Thus, given that petitioner was responsible for the multiple adjournments that extended the life of the preliminary hearing past the 15–day period, his current claim rings especially hollow. Petitioner was not, therefore, treated in a discriminatory manner as he alleges, and there was no reason for the hearing officer to recuse herself.
Furthermore, where, as here, a parolee's behavior is disruptive to the proceedings, the proceedings may continue in his absence (see People ex rel Taylor v. Jones, 171 A.D.2d 906 [3d Dept 1991] ; People ex rel Alli v. Warden, Index No 340307–14, 10 [Sup Ct Bronx County, Aug. 29, 2014, Massaro, J] ). On April 16, 2014, petitioner became angry when counsel attempted to explain that adjourning the hearing to obtain evidence pertaining to the first charge would not benefit petitioner because respondent was proceeding on another charge and he began shouting when counsel requested to be relieved. He continued to shout after corrections officers rushed the courtroom and, after he was removed, could be heard yelling through the closed courtroom door, as he was lead down the hallway. He, moreover, refused to address the allegation in the fifth charge, choosing instead to only focus on defending against the first charge. He may not now complain that the preliminary hearing proceeded in his absence.
The court notes, moreover, that petitioner demonstrated disruptive behavior on other court dates, as well (see minutes of March 27, April 2 and May 14, 2014).
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Accordingly, because petitioner received a timely preliminary hearing that was adjourned for legitimate reasons and he has not demonstrated prejudice, and because the hearing officer was permitted to conduct the preliminary hearing in petitioner's absence as a result of his disruptive behavior, the petition is dismissed.
This constitutes the decision and order of the court. The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.