Opinion
No. 585–10.
2010-09-3
The PEOPLE of the State of New York ex rel. Christopher WELCH, Petitioner, v. WARDEN, Westchester County Jail and the New York State Division of Parole, Respondents.
JOHN P. COLANGELO, J.
Petitioner Christopher Welch (“Petitioner” or “Welch”) brings the instant Writ of Habeas Corpus to challenge the probable cause finding of the Respondent New York State Division of Parole (“Respondent” or “Parole”) that he violated a condition of his post-release supervision. Welch was previously convicted of Forcible Touching (Penal Law Section 130.53) and sentenced to a determinate term of incarceration of one and one-half (1 1/2) to three years, to be followed by three (3) years of post-release supervision. Petitioner was conditionally released on January 25, 2010.
On May 11, 2010, a parole violation warrant was issued against Welch. The warrant alleged lewd behavior. Shortly thereafter, a Violation of Release Report (the “Report”) was issued. The Report contained six charges, all relating to conduct that allegedly occurred at the Grasslands Homeless Shelter in Valhalla, New York (the “Shelter” or “Grasslands”) on February 24, 2010. Petitioner requested and was granted a Preliminary Violation Hearing, and was assigned counsel.
A Preliminary Violation Hearing (the “Hearing”) was held on May 25, 2010 before Hearing Officer Yolanda Hernandez. Petitioner, represented by counsel, did not testify and offered no witnesses. The Division of Parole called Parole Officer Rhodes and Grasslands Security Officer Nigel Forde as its witnesses. The Hearing proceeded on the charges that had previously been served upon Petitioner.
Parole Officer Rhodes testified that Petitioner had been released from prison on January 25, 2010 and was supervised thereafter by him at the Grasslands Shelter. Rhodes testified that he had reviewed the Special Conditions of Petitioner's Parole with Welch when his supervision of Welch began. He also stated that he had conducted an investigation of an alleged incident involving Petitioner that occurred on February 24, 2010. After cross-examination by Petitioner's counsel, Parole called its principal witness, the Supervisor of Security for the Grassland's Shelter, Nigel Forde.
Mr. Forde identified Petitioner as a resident of the Shelter. Mr. Forde testified that on February 24, 2010, he observed Petitioner approach a Grasslands Shelter employee, Stacy Fields. While doing so, Petitioner was grabbing his crotch and “groping himself in a suggestive manner”. Mr. Forde testified that Petitioner's hand was on his crotch while standing no more than 12 inches away from Ms. Fields. Mr. Forde ordered Welch to desist from such conduct, and warned him that such behavior would not be tolerated. Petitioner nonetheless persisted and continued to advance towards Ms. Fields until Mr. Forde physically removed Ms. Fields from his path. Mr. Forde testified that the incident occurred at approximately 3 p.m. On cross-examination, Mr. Forde added that he observed Petitioner continually groping himself as he approached Ms. Fields.
Petitioner chose not to testify on his own behalf. In her summation, Petitioner's attorney asked that the charges be dismissed because Stacy Fields did not testify at the Hearing and therefore could not verify that she had been “alarmed or annoyed” by Petitioner's actions. Moreover, Petitioner's attorney asked that the charges be dismissed since the incident occurred at 3 p.m., not 9 p.m. as originally stated in the Report.
The Hearing Officer overruled Petitioner's objections and sustained Charge No. 5. Officer Hernandez found that there was probable cause to believe that Petitioner “by grabbing his crotch area with his hand in a lewd manner” had violated Special Parole Condition 47. A final Parole Revocation Hearing was scheduled for June 22, 2010 and was adjourned to August 11, 2010. Petitioner then brought the instant Writ of Habeas Corpus. Discussion and Conclusion.
Petitioner's motion presents, in essence, two issues:
(1) Whether the preliminary hearing decision of Hearing Officer Hernandez (the “Decision”) was improper because Respondent did not call Stacey Fields, the Grasslands employee who was the alleged object of Petitioner's behavior, despite Petitioner's belated request that Respondent do so; and
(2) Whether the fact that the time of the incident as initially set forth in the Violation of Release Report differed from the incident time as testified to by Officer Forde mandates a finding of no probable cause.
With respect to both the issues, the Court finds in favor of Respondent and sustains the finding of probable cause made by Hearing Officer Hernandez. Failure to Call Stacey Fields
With respect to the first issue, there is clearly no requirement, by statute or rule, that the Division of Parole call any particular witness in a preliminary violation hearing, as long as the testimony and any other evidence adduced is sufficient to establish probable cause that the alleged violation occurred. ( SeeExecutive Law § 259–i(c); People ex rel Korn v. N.Y. State Div. Of Parole, 274 A.D.2d 439 (2d Dept.2000). In the instant case, the testimony of the principal witness whom the Respondent chose to call—Supervisor of Security Officer Nigel Forde—was sufficient to meet Respondent's burden with respect to Defendant's alleged violations of Condition 47 of his Parole Conditions.
At the hearing, Officer Forde testified that while assisting in the supervision of Petitioner at the Grasslands facility, he observed Defendant repeatedly grab his crotch, and while doing so, approach Stacey Fields, a Grasslands employee. It is unclear from the testimony whether or not Ms. Fields was aware, at the time, of Welch's conduct—an ambiguity on which Petitioner attempts to seize, since Ms. Fields did not testify at the Hearing. However, Defendant's reliance upon this purported ambiguity is misplaced since Condition 47 does not require that the object of lewd behavior be contemporaneously aware of it.
Parole Condition 47 requires that Defendant “not behave in a lewd manner or in any manner that will cause alarm or annoyance due to inappropriate behavior that may or may not be sexual in nature.” (Emphasis supplied). Webster's New Collegiate Dictionary defines “lewd” as “vulgar; sexually unchaste or licentious; obscene, salacious.”
Under the clear terms of Condition 47, behavior that can reasonably be deemed lewd need not be directed toward, observed by, or affect the sensibility of any particular person. Only behavior that is not lewd but is nonetheless “inappropriate” must also rise to the level of causing “alarm or annoyance” to another person. In the instant case, Welch's conduct—repeatedly grabbing his crotch as observed by Officer Forde—may reasonably be characterized as “lewd” within the above definition and within the meaning of Condition 47, whether or not the purported object of Welch's activity—Ms. Fields—was aware that it was taking place. Accordingly, the events as testified to by Officer Forde well establish probable cause that Petitioner violated Condition 47, with or without the testimony of Stacey Fields.
Moreover, Petitioner's request that Ms. Fields be called to testify was not only too little—for the reasons stated above—but also came too late. As the principal case relied upon by Petitioner himself indicates, a witness must only be produced by the People at a preliminary hearing upon the timely request of a defendant. Morrissey v. Brewer, 408 U.S. 471 (1972); see also, e.g., Currie v. New York State Board of Parole, 298 A.D.2d 805 (3d Dept.2002). Here, Welch did not request that Ms. Fields be produced until after the People's case had concluded—hardly a timely demand under Morrissey. In any event, for the reasons set forth above, Ms. Field's testimony was not necessary for the People to meet their probable cause burden. Notice of the Time of the Events at Issue:
Under the Executive Law, for purposes of a preliminary parole violation hearing, the People are only required to give a defendant adequate notice of the alleged violation. Executive Law § 259–i(3). The Division of Parole did so here. The Notice of Violation clearly describes the nature of the offending conduct, the date on which it allegedly occurred, and by whom it was allegedly observed. The mere fact that the time of the occurrence was initially misstated in the Report is of no moment, particularly since the Report was amended before the hearing commenced to eliminate the reference to the mistaken time frame of the alleged incident. In any event, the Notice adequately advised Welch of the nature and scope of the charges against him as required by the Executive Law. See Gonzales v. New York State Board of Parole, 193 A.D.2d 356 (1st Dept.1993); People ex rel. Ward v. Sullivan, 137 A.D.2d 779 (2d Dept.1988).
By reason of the foregoing, Petitioner's Writ is denied in all respects.
The foregoing constitutes the Decision and Order of this Court.