Opinion
0073–2018
02-26-2018
The PEOPLE of the State of New York EX REL. Rory DOLAN, Petitioner v. Michael A. SCHIFF, Sheriff, Sullivan County; Anthony J. Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision; and Tina M. Stanford, Chairwoman, New York State Board of Parole, Respondents.
Carter, Ledyard & Milburn, LLP, 2 Wall Street, New York, New York 10005–2072, By: Alan Lewis, Esq., Attorneys for Petitioner, Rory Dolan Eric T. Schneiderman, Esq., Attorney General of the State of New York, 1 Civic Center Plaza, Suite 401, Poughkeepsie, New York 12601–3157, By: Heather R. Rubenstein, Esq., Assistant Attorney General, Attorneys for Respondents Anthony J. Annucci and Tina M. Stanford Cheryl McCausland, Esq., Sullivan County Attorney, County Government Center, 100 North Street, PO Box 5012, Monticello, New York 12701, By: Andrew J. Ford, Esq., Attorneys for Respondent Michael A. Schiff
Carter, Ledyard & Milburn, LLP, 2 Wall Street, New York, New York 10005–2072, By: Alan Lewis, Esq., Attorneys for Petitioner, Rory Dolan
Eric T. Schneiderman, Esq., Attorney General of the State of New York, 1 Civic Center Plaza, Suite 401, Poughkeepsie, New York 12601–3157, By: Heather R. Rubenstein, Esq., Assistant Attorney General, Attorneys for Respondents Anthony J. Annucci and Tina M. Stanford
Cheryl McCausland, Esq., Sullivan County Attorney, County Government Center, 100 North Street, PO Box 5012, Monticello, New York 12701, By: Andrew J. Ford, Esq., Attorneys for Respondent Michael A. Schiff
Frank J. LaBuda, J. Procedural Background
On April 20, 1995, Petitioner was convicted after jury trial of two (2) counts of Rape in the 1st Degree, two (2) counts of Sexual Abuse in the 1st Degree, two (2) counts of Robbery in the 1st Degree, and two (2) counts of Burglary in the 1st Degree, and one (1) count of Unauthorized Use of a Motor Vehicle in the 1st Degree . Petitioner received an aggregate sentence of twenty (20) to forty (40) years in prison. Petitioner appealed his conviction, which was denied. People v. Dolan , 2 A.D.3d 745, 768 N.Y.S.2d 654 (2d Dept. 2003) ; leave to appeal denied, People v. Dolan , 8 N.Y.3d 845, 830 N.Y.S.2d 704, 862 N.E.2d 796 (Ct. App. 2007). Petitioner also applied for a writ of error coram nobis to vacate his conviction, which was also denied. People v. Dolan , 33 A.D.3d 721, 821 N.Y.S.2d 891 (2d Dept. 2006). Lastly, Petitioner sought a write of habeas corpus in the United States District Court, Eastern District, which was also denied. Dolan v. Donelli , 2010 WL 5491101 (E.D.N.Y. Dec. 30, 2010), denial affirmed, Dolan v. Donelli , 2012 WL 4483004 (E.D.N.Y. Sept. 27, 2012).
On November 17, 1988, Petitioner brandished a knife and forcibly entered the home of a woman, who he then slashed, handcuffed her wrists, and raped her. Petitioner also searched the victim's home for cash and jewelry while she remained bound. On December 12, 1990, Petitioner forcibly entered another woman's home while brandishing a shotgun and proceeded to handcuff and rape his second victim, removing the victim's rings from her fingers before leaving the residence. Both incidents took place in Suffolk County, New York.
Petitioner was released from prison to parole supervision on his conditional release date of November 16, 2017. Petitioner was subject to several written conditions of release, the relevant condition herein being that Petitioner "would not own or possess a beeper, scanner, or cell phone without the permission of his Parole Officer." Even if given permission to own or possess any of these devices, said device could not have photograph or video capabilities, nor could said device have Internet capabilities.
On the merits of this Writ, the Respondents contend, and Petitioner disputes, that Petitioner's Parole Officer gave Petitioner an oral condition that should he obtain a cell phone, he was to immediately notify her so that she could determine whether the cell phone conformed to the conditions for cell phones of the Sex Offender Registration Act.
The following facts, however, are undisputed by either party for purposes of this Writ: that on November 30, 2017, approximately two (2) weeks after his release, Petitioner's Parole Officer arrived unannounced at Petitioner's residence. While at Petitioner's residence, Petitioner's Parole Officer viewed a cell phone case and/or packaging on Petitioner's kitchen counter. Upon his Parole Officer's questioning, Petitioner admitted that his step-father had recently purchased a cell phone for him, which had arrived by mail to Petitioner's residence (which is his step-father's home) on November 28, 2017. Petitioner admitted to being in possession of the cell phone, which was located in Petitioner's bedroom at the time of the Parole Officer's visit.
Following the Parole Officer's discovery of Petitioner's possession of a cell phone, a parole violation warrant was issued. Petitioner was taken into custody at Sullivan County Jail, where Petitioner is currently detained. Petitioner was charged with three (3) violations of the conditions of his release, namely that (1) he possessed a communication device (Verizon Kyocera cell phone) without prior written permission from his parole officer, (2) that he possessed the internet on a Verizon Kyocera cell phone without prior written permission from his parole officer, and (3) that he possessed a Verizon Kyocera cell phone without the permission of his parole officer.
A Preliminary Violation Hearing was held on December 13, 2017, wherein Petitioner's Parole Officer proceeded only on Charge # 3—that "Petitioner possessed a Verizon Kyocera cell phone without the permission of his parole officer." Petitioner was represented by counsel at this Hearing. After hearing testimony from both Petitioner and his Parole Officer, as well as Petitioner's step-father, the Hearing Officer determined that probable cause existed to detain Petitioner on a parole violation pending a Final Violation Hearing.
Petitioner, by Order to Show Cause, seeks by writ of Habeas Corpus pursuant to CPLR § 7009(e) to be released from detention at Sullivan County Jail and, in the alternative, admitting Petitioner to bail pending a final disposition of this Writ. Petitioner contends that there was no probable cause for Petitioner to have been found to have violated the conditions of his parole, in that Petitioner denies that he was directed by his Parole Officer to immediately notify her of his possession of a cell phone. Petitioner claims that he had permission from his Parole Officer to obtain a cell phone, and that he intended to inform her of this at their next meeting on December 8, 2017 and bring the cell phone for her inspection.
The parties appeared before this Court for oral argument on February 6, 2018. The Petitioner argued that there was no sufficient evidence presented at the Preliminary Parole Violation Hearing for the Hearing Officer to find probable cause that Petitioner had possessed a cell phone without his Parole Officer's permission. Petitioner contends that the "clear and unambiguous testimony" of Petitioner's Parole Officer evidences that Petitioner in fact had permission to obtain a cell phone, and that Petitioner's Parole Officer instructed Petitioner to obtain a cell phone. Petitioner argues, therefore, that his detention pending a Final Parole Violation Hearing is illegal and constitutes a deprivation of Petitioner's liberty. Lastly, Petitioner argues that he has a legal and statutory entitlement to be admitted to bail and requests such admittance pending a final determination of his Writ.
The Respondent Sheriff of Sullivan County acknowledged that Petitioner is being detained in Sullivan County Jail by virtue of authority contained in a warrant pursuant to Executive Law § 259–i(3)(a)(i) from the New York State Department of Corrections and Community Supervision that required the Respondent to detain the Petitioner.
The Attorney General of the State of New York, attorney for the Respondents Acting Commissioner of the New York State Department of Corrections and Community Supervision and the New York State Board of Parole (hereinafter the "Respondents") also filed an Answer and Return upon Petitioner's Writ. With regard to Petitioner's request for admittance to bail, the Respondents argued that Petitioner was not constitutionally entitled to bail and that Criminal Procedure Law did not apply to parole revocation hearings. The Respondent's further argued that the instant Writ proceedings are civil in nature and thus, bail is inapplicable.
The Court reserved decision on the merits of Petitioner's Writ in so far as his request for dismissal of the Parole Violation claim and that issue shall be rendered in a separate Decision and Order. The issue of admittance to bail shall be decided by this Court herein. The Bail Argument
Petitioner first noticed his bail application in his Order to Show Cause for this Writ. After oral argument on this Writ, Petitioner then argued for admittance of the detainee to bail pending the Court's final determination on the merits of his Violation of Parole charges and his Writ. Petitioner argues that this Court has the discretion to grant to him an admittance of bail as part of the relief of his Writ of Habeas Corpus. Petitioner states that he has a statutory right under CPLR § 7009 in a Writ of Habeas Corpus proceeding and a constitutional right to bail under the Eighth Amendment of the United States Constitution for adverse physical custodial detention by the Government.
The Respondents argue that bail is not permissible in this Writ of Habeas Corpus because this is a civil proceeding and not a criminal proceeding controlled by New York's Criminal Procedure Law as it applies to bail applications. Respondents further argue that there is no Constitutional Right to bail in parole revocation hearings. The Respondents oppose Petitioner's application for bail and request remand to the Sullivan County Jail without bail.
Legal Analysis
CPLR § 7009(e), in its pertinent part, recites as follows: "[p]ending final disposition [of a Writ of Habeas Corpus], the court may place the person detained in custody or parole him or admit him to bail as justice requires." CPLR § 7009(e) (emphasis added). Thus, this Court has statutory jurisdiction over Petitioner's application for admittance to bail in a Writ of Habeas Corpus. As such, it is fully within this Court's discretion and authority to grant- or deny- an application for admittance to bail in this matter and, if so required, to revoke the bail and restore the Petitioner to the custody of the proper authorities. See, Bell v. Center , 2010 WL 2000526 (S.D.N.Y. May 18, 2010) ; People ex rel. Robertson v. New York State Bd. Of Parole, 67 N.Y.2d 197, 501 N.Y.S.2d 634, 492 N.E.2d 762 (Ct. App. 1986) ; People ex rel. Lee v. New York State Bd. Of Parole , 165 A.D.2d 959, 561 N.Y.S.2d 930 (1990) ; People ex rel. Alexander v. LeFevre , 116 A.D.2d 869, 498 N.Y.S.2d 485 (3rd Dept. 1986) ; People ex rel. Walker v. New York State Bd. Of Parole, 98 A.D.2d 33, 469 N.Y.S.2d 780 (2d Dept. 1983) ; Kurlander v. Mark , 78 A.D.2d 588, 432 N.Y.S.2d 287 (4th Dept. 1980) ; Strachan v. Soloff ; 157 A.D.2d 122, 554 N.Y.S.2d 565 (1st Dept. 1990).
Petitioner requests admittance to bail as part of his application for a Writ of Habeas Corpus, and not as part of his Preliminary or Final Parole Revocation Hearing. The Respondents' disassociation of the Criminal Procedure Law is therefore misplaced. There is no exception to CPLR § 7009(e) for the discretionary admittance to bail for Writs that involve parole revocations. The remainder of the Respondents' arguments pertaining to Petitioner's request for admittance to bail are without merit. The cases cited by the Respondents are distinguishable in that they involve the denial of bail as relief requested as part of a parole revocation hearing, not a Petition for Writ of Habeas Corpus.
The Respondents cited Galante v. Warden, Metropolitan Correctional Center , 573 F.2d 707 (2d Cir. 1977) ; People ex. Rel. Calloway v. Skinner , 33 N.Y.2d 23, 33–34, 347 N.Y.S.2d 178, 300 N.E.2d 716 (1973) ; and People ex. Rel. Little v. Monroe , 38 A.D.2d 398, 400, 330 N.Y.S.2d 221 (2d Dept. 1972).
The Eighth Amendment of the United States Constitution, in pertinent part, states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." USCS Const. Amend. 8 . It cannot be gainsaid that the decision of a Court on a detainee's Writ of Habeas Corpus directly impacts upon his liberty and his custodial placement by the government against his wishes. Liberty is an irrefutable fundamental interest, and the imposition of bail instead of remanding a person to the custody of the government clearly serves a compelling government objective in appropriate circumstances. See, The People of the State of New York ex rel. Philip Desgranges, Esq. v. Adrian Butch Anderson, Dutchess County Sheriff , 59 Misc.3d 238, 72 N.Y.S.3d 328, 2018 WL 846505 (Sup. Ct.) .
As stated in Herzog v. U.S. , 75 S.Ct. 349, 351 , 99 L.Ed. 1299 [1955] , "The shadow of a doubt across one's own conclusions is itself sufficient, at least where bail is concerned. Bail is basic to our system of law... Doubts whether it should be granted or denied should always be resolved in favor of the defendant." It should be noted that the admittance to bail is appropriate where there is minimal risk of flight and danger to the public. See , Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) .
The Petitioner here set forth on the record during oral argument of his bail application that he has been a model prisoner and successfully completed all sex offender treatment and courses within the New York State Department of Corrections. The Respondents failed to set forth any reasonable argument as to why the Petitioner should be denied the admittance to bail in order to serve the penological interests of the State of New York or to protect the public. Based on the foregoing and after oral argument, it is therefore
ORDERED that Petitioner's request that this Court fix bail pending this Court's final disposition of Petitioner's application for a Writ of Habeas Corpus is granted; and it is further
ORDERED that this Court fixes bail as follows: Five Thousand ($5,000.00) Dollars, cash or insurance company bond; and it is further
ORDERED that if Petitioner is able to post bail, he shall immediately report to the New York State Department of Corrections and Community Supervision and/or Board of Parole; and it is further
ORDERED that if Petitioner is able to post bail, he shall continue to abide by and comply with his conditions of release and subsequent revisions thereto, if any; and it is further
ORDERED that Petitioner, shall, as a condition of bail, make himself available to the Sullivan County Court, the New York State Department of Corrections and Community Supervision, the New York State Board of Parole, or any court of competent jurisdiction as directed for such other and further proceedings as may be scheduled, including but not limited to the Final Violation Hearing; and it is further
ORDERED that should Petitioner fail to appear in Sullivan County Court or any court of competent jurisdiction as directed, this bail order shall be revoked and Petitioner shall be immediately taken into custody; and it is further
ORDERED that should Petitioner fail to appear before the New York State Department of Corrections and Community Supervision or the New York State Board of Parole as required, this bail order shall be revoked and Petitioner shall be immediately taken into custody; and it is further
ORDERED that upon the posting of the bail as ordered herein, the Sullivan County Sheriff's Department shall release the Petitioner herein.
This shall constitute the decision and order of this Court.