Opinion
No. 250642–14.
09-25-2014
The PEOPLE of the State of New York ex rel. Jhalil YOUNG, Petitioner, v. WARDEN, OTIS BANTUM CORRECTIONAL CENTER, and NYS Department of Corrections and Community Supervision, Respondents.
Anna Hehenberger, Assistant Attorney General, for the State. Kerry Elgarten, Esq., for Petitioner.
Anna Hehenberger, Assistant Attorney General, for the State.
Kerry Elgarten, Esq., for Petitioner.
JAMES M. KINDLER, J.
DECISION AND ORDER
Petitioner seeks a writ of habeas corpus claiming that he “was denied his statutory and due process rights where his purported waiver of his preliminary hearing occurred before he received proper accurate notice of all of the parole charges.” Verified Petition for Writ of Habeas Corpus (“Petition”), ¶ 16. Respondent opposes the petition (see “Opposition” and petitioner's “Reply”).
For the reasons that follow, the petition is dismissed.
Findings of Fact
In 2012, petitioner was convicted in Queens County Supreme Court of Robbery in the First Degree and Robbery in the Second Degree (two counts) and was sentenced to an indeterminate term of imprisonment of from one year and four months to four years. On October 1, 2013, he was released to parole supervision and, barring any violations of his conditions of release, which he agreed to, he was to be supervised until May 12, 2016.
On March 22, 2014, petitioner was declared delinquent and charged with violating three conditions of his release. Parole Warrant No. 640543 was issued on April 7, 2014 and lodged on April 18, 2014. On April 21, 2014, petitioner was served with a copy of the Violation of Release Report (“VORR”) and a Notice of Violation. He elected to waive his right to a Preliminary Parole Revocation Hearing (“preliminary hearing”); the Final Parole Revocation Hearing (“final hearing”) was scheduled to be held on May 2, 2014.
Petitioner was charged in the VORR with violating the following charges:
1) Rule # 8: On “3/22/14, at or about 1:00 hours, inside of 178 Avenue D, # 5F, NYC, he grabbed complainant by her neck and arm causing scratches to her neck and bruises to her right arm;”
2) Rule # 2: On “3/25/14 and thereafter, he failed to make an office report to 314 West 40th Street, NYC as directed to do by P.O. Henry during a telephone conversation on 3/25/14;” and
3) Rule # 4: “On or before 4/2/14 and thereafter, he changed his approved residence at 170 Ave D,[ ] # 5G, New York [C]ity, and failed to notify his Parole Officer of his whereabouts.”
On April 22, 2014, a Supplemental Violation of Release Report (“SVORR”) was prepared, adding two supplemental charges against petitioner; the charges pertain to petitioner's April 17, 2014 arrest and are unrelated to the original charges.
Petitioner was charged in the SVORR with the following charges:
1) Rule # 8: “[O]n 4/17/14 at approximately 8:25 P.M., at the nort[ ]east corner of Attorney Street and East Houston Street, New York[,] N.Y. he did violently resist arrest;” and
2) Rule # 8: “[O]n 4/17/14 at approximately 8:25 P.M., at the north[ ]east corner of Attorney Street and East Houston Street, New York, NY, he did fail to return to [a] criminal court proceeding thus revoking his bail.”
On May 2, 2014, defendant was produced at the Rikers Island Judicial Center to be arraigned for the final hearing, and was served with the SVORR. Petitioner's counsel requested a preliminary hearing on the supplemental charges, arguing that his prior waiver was rendered invalid by the addition of the new charges. He was not afforded another opportunity for a preliminary hearing and the final hearing was adjourned and ultimately held on May 21, 2014, where his conditional release to parole supervision was revoked. Opposition, ¶ 11.
Conclusions of Law
Petitioner contends his writ should be sustained on the ground that his waiver of the right to a preliminary hearing was made before he was notified of the supplemental charges and, thus, that the waiver was not made knowingly, voluntarily and intelligently. Respondent opposes, arguing that petitioner's waiver was valid and he was not entitled to a preliminary hearing on the supplemental charges.
Parole revocation proceedings are governed by the Executive Law. Under the statute, a parole officer who has reasonable cause to believe that a parolee has violated a condition of his parole may report his belief 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 parolee's arrest. Executive Law § 259–i(3)(a)(i). Within three days of the execution of the warrant, the parolee must be given written notice of the time, place and purpose of a preliminary hearing. Executive Law § 259–i(3)(c)(iii). This notice must also inform the parolee of, among other things, the conditions of parole or post-release supervision which are alleged to have been violated. Id.
Within fifteen days of execution of the warrant, a preliminary hearing must be held before a hearing officer designated by the board of parole. Executive Law § 259–i(3)(c)(i). The standard of proof 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) [emphasis added]. If a probable cause determination is made, a final revocation hearing must be held within 90 days. Executive Law § 259–i(3)(f)(i). Although the statute is silent on the subject, the courts have concluded that if a parolee waives his right to a preliminary hearing, the final hearing must be held within 90 days of the waiver. See e.g., People ex rel. Schneider v. Warden, 99 A.D.2d 792 (2d Dept 1984) (“[t]he day [the] petitioner waived his right to a preliminary hearing to determine if there was probable cause to believe he violated the conditions of his parole is deemed the day the probable cause determination is rendered”).
Here, upon receiving the initial VORR containing four charges pertaining to petitioner's violations of the conditions of release, petitioner elected to waive his right to a preliminary hearing. He does not contest the validity of that waiver with regard to the charges in that initial report (see Petition, ¶ 14), but claims that the once valid waiver became invalid when the supplemental charges were added because the waiver “occurred before he received proper and accurate notice of all of the parole violation charges against him.” Petition, ¶ 16.
Due process requires a preliminary hearing to determine whether parole authorities (“Parole”) had probable cause to believe the parolee committed a parole violation and whether the continued detention of the alleged violator is appropriate. Morrissey v. Brewer, 408 U.S. 471, 485, 487 (1972). And, as petitioner concedes, Parole can make such a showing at a preliminary hearing by proceeding on only one of the charges listed in the VORR. See Reply, ¶ 9; Executive Law 259–i(3)(c)(iv) ; cf. People ex rel. Kinzer v. Willaims, 256 A.D.2d 1240 (3d Dept.1998). Petitioner additionally agrees that once probable cause has been established and the detention of a parolee deemed proper, Parole “may permissibly add charges that will be addressed at the final hearing.” Reply, ¶ 9. See Suce v. Taylor, 572 FSupp2d 325, 338, fn 6 (SDNY 2008) (“The Court finds no instances of case law noting that the addition of a Supplemental Violation of Release Report would constitute a violation of due process, but rather finds many precedents in which violations in similar supplemental reports were filed without issue”); People ex rel Clinkscales v. Bombard, 56 A.D.2d 940 (2d Dept 1977) (permitting supplemental report after preliminary hearing, with notice to parolee before final hearing); People ex rel. Tagliamonte v. Warden, Index No 1555–90 (Bronx Cty Sup Ct Jan 10, 1991) (“The Division may add additional charges at anytime prior to a final hearing subject to proper notice to relator”).
What was formerly known as the Division of Parole has been subsumed by the New York State Department of Corrections and Community Services (DOCCS). For purposes of this opinion the parole section of DOCCS will be referred to simply as “Parole.”
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Petitioner nevertheless contends that while the addition of supplemental charges following a probable cause determination is proper, adding supplemental charges after a parolee waives his right to a preliminary hearing is not. He claims that a waiver is not “a concession of probable cause as to any charges,” but “a substitute for a finding of probable cause;” in this case, he argues, the waiver is not valid “due to the subsequent addition of the unrelated and more serious charge.” Reply ¶ 11. The State disagrees, arguing instead that “parolees who elect to waive the right to a preliminary hearing must be treated equally to those who elect to proceed with a preliminary hearing” and that it would be “baselessly inequitable to vacate the warrant or dismiss supplemental charges when probable cause was found as a result of a knowing and intelligent waiver.” Opposition, ¶ 18.
Support for the State's position is found in various appellate cases holding that a waiver is equivalent to a probable cause determination. See People ex rel. Schneider v. Warden, supra; People ex rel. Gray v. Campbell, 241 A.D.2d 723, 724 (3d Dept 1997) (“[w]here, as here, the petitioner waives his or her right to a preliminary hearing, such waiver is equivalent to a probable cause determination for purposes of Executive Law § 259–i(3)(f)(i) ”); Matter of Garland v. Parole, 86 A.D.2d 848, 848) (1st Dept 1982) (“Section 259–i [subd 3, par (f), cl (i) ] of the Executive Law provides that revocation hearings shall be scheduled to be held within 90 days of probable cause determination [in this instance, the waiver of the preliminary hearing ...”] ); Matter of Picciano v. Hammock, 92 A.D.2d 1043, 1043 (3d Dept 1983) (“[T]he probable cause determination occurred ... when [the] petitioner waived his right to a preliminary revocation hearing”). These cases hold that, for purposes of Executive Law § 259–i(3)(f)(i), which provides that the final hearing must be held within 90 days of the probable cause determination, a waiver of a preliminary hearing is equivalent to a probable cause determination. If the same interpretation of a waiver is applied in the present context, supplemental charges may be preferred against a parolee after he waives a preliminary hearing, just as they may against a parolee as to whom there has been a probable cause determination after a hearing.
The same holds true, however, even if we adopt the petitioner's view of the waiver—as merely a “substitute” for, rather than a “concession” of, probable cause. It represents, in either case, a decision not to contest the issue of probable cause, which should rightly place the parolee who waives in the same position as one as to whom there has been a finding of probable cause after a hearing. In any event, receiving notice of supplemental charges before the preliminary hearing would be of little practical benefit to a parolee, as it would not enable the parolee to affect the course of parole revocation proceedings. As petitioner concedes, Parole must establish probable cause for only one of the violation charges against petitioner (see Reply, ¶ 9; Executive Law 259–i(3)(c) (vii–viii)). Thus, even if a parolee got prior notice of supplemental charges, he would not receive a preliminary hearing on those charges unless Parole elected to proceed at the hearing on one of the supplemental charges, instead of one of the original charges. Prior notice is therefore not essential to due process; nor is there any basis for reading a requirement to provide such notice into the governing statute. For the same reason, a waiver of preliminary hearing—regardless of whether it is characterized as a “concession” or a “substitute” for probable cause—cannot be considered involuntary or uninformed solely because prior notice of supplemental charges was not provided. Prior notice has no significant consequences for the parolee at the preliminary hearing, and thus lack of notice would not render a waiver of a hearing, which is otherwise freely and intelligently made, invalid. It is sufficient for notice of supplemental charges to be provided before the final hearing, when the parolee has the opportunity to contest both the original and supplementary charges. Cf. Matter of Frain v.. Yelich, 2012 N.Y. Misc. LEXIS 5828, 2012 N.Y. Slip Op 33051(6) (Sup. Ct., Franklin Cty 2012) (issuance of supplemental charges after waiver of preliminary hearing did not deprive parolee of due process). Accordingly, the adjudication, here, at the final hearing, of supplemental charges that were added after petitioner's waiver of the preliminary hearing, was valid—just as it would have been if the charges were added after a preliminary hearing. To the extent that opinions filed by other trial courts differ from the views expressed here (see, e.g., People ex rel Davis v. Warden, 31 Misc.3d 1230[A] [Bronx Cty 2011] ), I respectfully disagree.
A parolee must be given 14 days notice (including notice of the charges) before the final hearing is held. See Executive Law 259–i(3)(f)(iii), NYCRR 8005.18. Here, petitioner received notice of the supplemental charges on May 2, 2014 and was given a final hearing on May 21, 2014. Because petitioner was given adequate notice of the supplemental charges before the final hearing was held, no new opportunity for a preliminary hearing was warranted. Accordingly, petitioner's writ is dismissed.
This constitutes the Decision and Order of the Court.