Opinion
Index No. 260466-19
09-26-2019
THE PEOPLE OF THE STATE OF NEW YORK ex rel JAMES NICHOLSON, B&C # 141-19-02918 NYSID # 09981989-Z WARRANT # 827751 Petitioner, v. WARDEN, OTIS BANTUM CORRECTIONAL CENTER AND NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondents.
Unpublished Opinion
Writ of Habeas Corpus
DECISION
MIRIAM R. BEST ACTING SUPREME COURT JUSTICE
Petitioner James Nicholson (hereinafter "Petitioner") seeks a writ of habeas corpus "directed to Respondent ... to vacate the warrant and release Petitioner forthwith" (Petition for Writ of Habeas Corpus p 15).
For the reasons that follow, the Petition is sustained.
Background
In 2007, Petitioner was convicted of two counts of Burglary in the Second Degree and received concurrent ten year determinate terms of imprisonment followed by three years' post release supervision (Cheng Aff in Opp ¶ 6). On December 15, 2018, Petitioner was released to parole supervision (id. ¶ 7).
On May 22, 2019, Petitioner was declared delinquent and charged with violating four conditions of his release to parole supervision (id. ¶ 8). DOCCS alleged that on May 22, 2019, at the northeast corner of 4th Avenue and 63rd Street, Brooklyn, Petitioner hit another person in the head with a glass bottle, causing a laceration to that person's head; that inside 830 4th Avenue, he resisted arrest by attempting to head butt an NYPD officer and by flailing his arms; and that he violated his curfew, as evidenced by his arrest at 11:30 PM (Respondents' Exh B). Parole Warrant # 827751 was issued and lodged against Petitioner on May 23, 2019 (Cheng Aff in Opp ¶ 9). On May 28, 2019 Petitioner was served with a copy of the Violation of Release Report (VORR) and a Notice of Violation (NOV) (id. ¶ 10). Petitioner's preliminary hearing was held on June 4, 2019. The State was represented by Parole Officer Shaw and Petitioner was represented by Matthew Finston and Juni Ozzengett of the Legal Aid Society (id. ¶ 11).
The Evidence at the Preliminary Hearing
Shaw elected to go forward on charge number three, which alleged that:
James Nicholson violated rule number eight of the conditions of his release when his behavior violated the provisions of law to which he is subject, subject [to] penalty of imprisonment, of imprisonment in that on or about 5/22/2019 at approximately 11:30 p.m. inside of 830 ... inside of 834 4th Avenue, Brooklyn, New York he resisted arrest by flailing his arms.(Respondents' Exh F p 5). Police Officer Seymour testified that he responded to a job of an assault in progress and was supposed to transport the defendant back to the precinct. He was not the arresting officer but was present during the arrest (id. pp 9-10). Seymour testified, "When I transported [him] back to the car he started (cd going in and out, inaudible)" (id. p 10). Petitioner's counsel then objected:
MR. MATTHEW FINSTON: Objection. The charge of the, the Division is going forward on is (cd going in and out, inaudible) 34th
Avenue, Brooklyn, New York. It's my understanding that it's a precinct.
PAROLE OFFICER DUANE SHAW: Yes it is.
PRELIMINARY HEARING OFFICER: Sustained.
PAROLE OFFICER DUANE SHAW: Your Honor-
PRELIMINARY HEARING OFFICER: (cd going in and out, inaudible)
PAROLE OFFICER DUANE SHAW: Yeah, I was, at first I was under the impression, at first I was under the impression that the incident, part of the incident took place in the precinct and (cd going in and out, inaudible)
PRELIMINARY HEARING OFFICER: And so ask questions pertaining to this charge.
PAROLE OFFICER DUANE SHAW: Yes. Charge number three as regarding that, regarding that one - -(Id.) Petitioner's counsel asked to have Seymour step outside the hearing room while they were discussing the charges; whatever the hearing officer said at that point was inaudible and not transcribed, and the parties "went off the record briefly" (id. p 11). When the parties went back on the record, the following took place:
PRELIMINARY HEARING OFFICER: Okay, we're back on the record. So officer you had an amendment to make - -
PAROLE OFFICER DUANE SHAW: Yes-
PRELIMINARY HEARING OFFICER: To the charge?
PAROLE OFFICER DUANE SHAW: The actual for the location of charge (cd going in and out, inaudible)
PRELIMINARY HEARING OFFICER: Okay, what is the location you are amending?
PAROLE OFFICER DUANE SHAW: The location is northeast (cd going in and out, inaudible).
PRELIMINARY HEARING OFFICER: Counsel?
MR. MATTHEW FINSTON: I object to the State proceeding on charge with the amendment (cd going in and out, inaudible) witnesses to that. My client may wish to call a defense that occurred at that location, alleged conduct that occurred at that location. Proceeding today will severely prejudice him (cd going in and out, inaudible). He was served with the charges he was prepared today to go with the charges as, as, as they were written.
PRELIMINARY HEARING OFFICER: Okay, your objection is noted for the record. However, we will move on. The charge does provide how and in what manner. The location - -
MR. MATTHEWFINSTON: I--
PRELIMINARY HEARING OFFICER: Is not relevant, is not relevant to the charge. So at this point we will move forward.
MR. MATTHEW FINSTON: You're [sic] honor it is relevant to the charge because the, this address is a precinct. I have case law here that says resisting . . . arrest, an arrest is completed after the Defendant is taken into custody. My client could not have resisted arrest after he was already cuffed. It's my understanding that he [was] cuffed and brought back to the precinct when - - -;
PRELIMINARY HEARING OFFICER: Okay Counsel -
MR. MATTHEW FINSTON: When he was changing -
PRELIMINARY HEARING OFFICER: You know all of this because we haven't gone through anything as of yet.
MR MATTEW FINSTON: It's my understanding - -
PRELIMINARY HEARING OFFICER: We have not gone through anything as of yet.
MR MATTHEW FINSTON: My client is, under regulations and under the executive law my client is entitled to time, place and
manner as to the charges, as to the material facts of the charges. Change of the location in this instance is material as it directly effects [sic] whether or not the Division and this, this Parole Officer can sustain by probable cause whether or not my client violated rule eight of the conditions of his release by moving forward without notice adjournment for my client to have notice of the charges that are i prepared and to bring in witnesses as to the change of the location violates his due process rights. I haven't even been able to discuss with my client the change in address. To proceed is a gross violation and I (inaudible) object.
PRELIMINARY HEARING OFFICER: Okay Counsel your objection is noted for the record. Again the specific location the number of the location is not material to the charge. It occurred in Brooklyn, the location is still in Brooklyn, the date is still the same, we're going based on the behavior of that charge - -
MR. MATTHEW FINSTON: Your Honor-
PRELIMINARY HEARING OFFICER: At which time your - -
MR. MATTHEW FINSTON: The time period -;
PRELIMINARY HEARING OFFICER: I'm sorry, excuse me. No, because you already discussed the action, the behavior does not change it's still the same thing. So we will, we will move forward -
MR. MATTHEWFINSTON: But-
PRELIMINARY HEARING OFFICER: The witness will be called in, back in and if there is [sic] any issues you may raise it in another venue. Please being in your witness.
MISS JUNI OZZENGETT: I'm sorry Judge we would ask for an opportunity to speak with our client about what behavior did happen at the location we were given by, by Parole. There are two, we have two interactions with the Police. One is at the location that the Division just now amended the charge to and the other is at the location that this is reflected in the charge. Mr. Finston has discussed with his client what did or didn't happen at the precinct. We would like an opportunity to discuss with my client what did or din't happen at the new location that the Division has just amended the charge to
reflect. That, that is basic, that's the reason why they tell us we amended a VOP what charge they're proceeding on so that we have the ability to talk with our client about that charge.
PRELIMINARY HEARING OFFICER: Counsel it's noted for the record. However, you're, you're [sic] Counsel spoke with his client concerning this charge, correct?
MR MATTHEW FINSTON: No I did not, the amended charge - -
PRELIMINARY HEARING OFFICER: You spoke to him - -
MR. MATTHEW FINSTON: I spoke, I did not speak to my client -
PRELIMINARY HEARING OFFICER: You didn't speak to him about his behavior?
MR. MATTHEW FINSTON: I spoke to his behavior only as it pertains to what occurred at 5/22/2019 at approximately 11:30 p.m. inside of 840 4th Avenue, Brooklyn, New York. I [have] case law of defense of this charge to change the charge as it violates my client's due process rights because it's materially different as to when the conduct alleged[ly] occurred. Whether it's, my understanding this is a precinct vers[u]s out in a different location as material to the charge of whether or not there was a resisting arrest.
PRELIMINARY HEARING OFFICER: You will get five minutes to speak with your client. We'll go off the record.(Id. pp 11-16.)
When the case was called back on the record, the officer amended the charge to reflect the address of the northeast corner of 4th Avenue and 63-rd Street and Respondent pleaded not guilty (id. pp 16, 17). Petitioner objected to the hearing moving forward (id. p 18). Officer Seymour then testified, in sum and substance, that he identified himself as a police officer, and after he told Respondent that he was going to be arrested, Seymour attempted to put handcuffs on him (id. p 19). However, Respondent "became irate, he started flailing his arms, he tried to (cd going in and out, inaudible) and screaming saying that this was unfair that he shouldn't be arrested and (cd going in and out, inaudible) Was just giving us a hard time in trying to cuff him, oh me a hard time trying to cuff him" (id. p 20).
After establishing that Seymour was not the arresting officer (id. pp 22,24), Petitioner moved to strike to officer's direct testimony because "in order for this Court to find probable cause that may client resisted arrest the State must present evidence that there is probable cause for attempted, for (cd going in and out, inaudible) Police officer affecting [sic] an authorized arrest" (id. p 25). Because Seymour was not the arresting officer, he had no first hand knowledge of the basis of Petitioner's arrest (id..). The Preliminary Hearing Officer did not rule on Petitioner's objection, and herself began questioning Seymour (id. p 26). She had Seymour establish that when he attempted to arrest Petitioner on May 22,2019, Petitioner began to flail his arms, was irate and screaming and throwing his body against the floor (id) The hearing officer also ruled that "[t]he officer is to testify based on the behavior .... This is not mitigation this is not going into anything else" (id. p 27). Petitioner objected, arguing that the charge the Division went forward on, as read into the hearing record, required the Division to establish probable cause to believe that Petitioner's behavior would subject him to a penalty of imprisonment (id. p 28). Officer Seymour was not aware of what Petitioner was being charged with when he attempted to place him in handcuffs (H 28, 29). Thereafter the following took place:
MR. MATTHEW FINSTON: Yes. When you arrived on the scene were there any statements given to you by the witnesses?
PRELIMINARY HEARING OFFICER: That's not pertaining to this charge.
PAROLE OFFICER DUANE SHAW: Objection, that's not, that's not the charge.
PRELIMINARY HEARING OFFICER: Sustained, that's not pertaining to this charge.
MR. MATTHEW FINSTON: Well there's, there has to be - -
PAROLE OFFICER DUANE SHAW: I object, I -
MR. MATTHEW FINSTON: (inaudible)
PRELIMINARY HEARING OFFICER: Sustained.(Id. p 29.) Counsel clarified that he was not asking what if any statements the witnesses may have provided but rather if there were any witnesses (id. p 30). At this point Shaw indicated that he had the arresting police officer present (id.). Questioning resumed as follows:
MR. MATTHEW FINSTON: How, how long did Mr. Nicholson flail his arms?
POLICE OFFICER SEYMOUR: How long did it take to put him in handcuffs or how long did he flail his arms? I don't know, I didn't time
PRELIMINARY HEARING OFFICER: What is the relevance to that question?
MR. MATTHEW FINSTON: It's material to the charge resisting arrest by flailing his arms.
PRELIMINARY HEARING OFFICER: Again, the time whether it was a few seconds that's irrelevant to the charge.
POLICE OFFICER DUANE SHAW: A resisting arrest is a resisting arrest.
PRELIMINARY HEARING OFFICER: Yes it is okay, okay.
(everyone speaking at the same time, inaudible)
MISS JUNI OZZENGETT (inaudible)
PRELIMINARY HEARING OFFICER: We are gonna, otherwise this witness will be excused.
MR. MATTHEW FINSTON: So, so the Court is not letting me proceed on my cross examination.
PRELIMINARY HEARING OFFICER: No, I'm telling you to ask questions pertaining to this arrest to, to this charge.
MR. MATTHEW FINSTON: May I ask the Court is, isn't my client charged with resisting arrest by flailing his arms.
PRELIMINARY HEARING OFFICER: At this, at this point the officer has testified that your Defendant has flailed his, his arms - -
MR. MATTHEW FINSTON: In what manner - -
PRELIMINARY HEARING OFFICER: While he was trying to be handcuffed.
MR. MATTHEW FINSTON: In what manner was it a, was it - -
PRELIMINARY HEARING OFFICER: Okay.
PAROLE OFFICER DUANE SHAW: It isn't relevant - -
MISS JUNI OZZENGETT: Of course it is.
PAROLE OFFICER DUANE SHAW: This isn't relevant.
PRELIMINARY HEARING OFFICER: What is the relevance to the, what is the relevance to the charge?
MR. MATTHEW FINSTON: It is the charge. It is the charge. Flailing is the charge.
PRELIMINARY HEARING OFFICER: Which he sated. Okay, Officer Seymour how did he resist.
POLICE OFFICER SEYMOUR: I went to put handcuffs on him and
MR MATTHEW FINSTON: Objection to the manner of the question is, I just wanted to specifically [sic] the flailing not how he resisted because that is an element of the charge.
PRELIMINARY HEARING OFFICER: That it the, he resisted arrested by flailing his arms.
MR. MATTHEW FINSTON: Flailing his arms in an element.
PRELIMINARY HEARING OFFICER: Excuse me. Officer Seymour how did - -
POLICE OFFICER SEYMOUR: He was flailing his arms basically not allowing me, throwing them in the air not allowing me to handcuff him.
MR. MATTHEW FINSTON. How close--
PRELIMINARY HEARING OFFICER: Thank you.
MR. MATTHEW FINSTON: Were you to Mr. Nicholas [sic] when this flail occurred.
POLICE OFFICER SEYMOUR: When you're trying to handcuff him (cd going in and out, inaudible)
PRELIMINARY HEARING: Okay that's it.
MR. MATHHEW FINSTON: Was in one foot - -
PRELIMINARY HEARING OFFICER: That's irrelevant, that is irrelevant to this charge. Are there anything - -
MR. MATTHEW FINSTON: Did you - -
PRELIMINARY HEARING OFFICER: Pertaining to this charge. MR.
MATTHEW FINSTON: Did you tell Mr. Nicholas [sic] that he was under arrest?
POLICE OFFICER SEYMOUR: Yes.
MR. MATTHEW FINSTON: You didn't so you told him that he was under arrest.
POLICE OFFICER SEYMOUR: You're under arrest put your hands behind your back and that's when I went to put the handcuffs on him (cd going in and out, inaudible)
MR. MATHHEW FINSTON: Did he turn around?
POLICE OFFICER SEYMOUR: No he started flailing his arms.
MR. MATTHEW FINSTON: So you started to put his handcuffs, handcuffs, him, his arms behind his back.
POLICE OFFICER SEYMOUR: Yes.
MR. MATTHEW FINSTON: Were you walking around him?
POLICE OFFICER SEYMOUR: He was - -
PAROLE OFFICER DUANE SHAW: Your Honor I don't see the relevance of this. When someone is put into custody if they do not, once they don't comply with the officer's order that is a part of resisting arrest.
MISS JUNI OZZENGETT: (inaudible)
PRELIMINARY HEARING OFFICER: Okay, so at this point thank you Officer. At this point the Court will dismissed [sic] the witness because the questions have been asked and the witness has testified as far as the action.
MR. MATHHEW FINSTON: I just want to make a record - -
PRELIMINARY HEARING OFFICER: And to the charge.
MR. MATTHEW FINSTON: I want to make a record - -
PRELIMINARY HEARING OFFICER: Pertaining to his arms. He has testified to the subject being aware that he was being placed under arrest.
MR. MATTHEW FINSTON: I'm objecting, I'm, I'm making an j objection under the executive law and the New York State Regulations my client is entitled to cross examine witnesses. I'm done [szc] with my cross examination, my cross examination is relevant to the charge. The questions I'm asking are specifically about the language in the charge. I, by dismissing this witness before my cross examination isn't [5/0] complete. It violates his due process I rights under (inaudible) constitution and under article one section six of the New York State (cd going in and out, inaudible).
PRELIMINARY HEARING OFFICER: Counselor your questions have been given ample opportunity to ask your questions only based on the charge. This witness has testified to the charge and the actions in the charge. You're [sic] client has been given his due process and is not being violated. None of his rights are being violated. You have i been given an opportunity to cross examine. At this time the Court feels that there is nothing else that this witness can testify too [sic] other than what he had already testified too [sic]. Thank you Officer Seymour you may return back to the conference room.
(The witness left the hearing room)
MR. MATTHEW FINSTON: I'm gonna object to the admission of the document being entered into the record as (inaudible) evidence. That the best evidence should be admitted if this was an arrest notification and we were informed that the Arresting Officer is present then the Arresting Officer should be present to testify. This is a secondary and it is in fact hearsay since the Officer is here today I and here to testify then the Officer should come in and present testimony for this - -
PRELIMINARY HEARING OFFICER: Okay Counsel we are, your objection is noted for the record. This is State's evidence Number Two.
(Whereupon, these documents were marked for identification purposes and admitted into the record as State's Exhibit Number Two)
PRELIMINARY HEARING OFFICER: We're gonna move on at this time. Do you have any closing statements.
MR. MATTHEW FINSTON: The, the Arresting Officer is not testifying? There's insufficient evidence - -
PRELIMINARY HEARING OFFICER: The Court does not feel that, the Court feels that enough testimony has been given to render a decision. So at this point we're going on - -
MR. MATTHEW FINSTON: So - - PRELIMINARY HEARING OFFICER: To closing arguments.(Id. pp 30-36, 39-40.) Counsel argued that without any testimony from the arresting officer, probable cause to arrest Petitioner had not been established (id. p 41). If the arrest was not lawful, then resisting it did not constitute a crime (id. p 42). Counsel also argued that he was entitled to notice of the amended charge and a due process right to cross-examine witnesses with first-hand knowledge rather than facing "all hearsay" (id.). At that point the hearingofficer cut off any further argument and held that there was probable cause "based on the credible testimony of PO Seymour" (id. pp 42-43).
The Parties' Contentions
Petitioner argues that his due process rights were violated when DOCCS amended Charge Number three to conform to the evidence presented at the hearing regarding the location of the alleged violation (Petitioner's Writ p 7). Relying on People v. Warren, 17 Misc.3d 27, 28 (Sup Ct, App Term 2nd Dept 2007) and People v. Hasenflue, 169 Misc.2d 766, 769 (Sup Ct, Ulster County 1996), Petitioner argues that the state may not amend a critical fact of a charge to conform to the testimony of a witness, and that conduct that takes place after the completion of the arrest may not be charged as resisting arrest under PL § 205.30. Accordingly, the allegation that he resisted arrest inside the 72 Precinct is "facially insufficient" and should have been dismissed. Instead of doing
Respondents oppose the motion in its entirety, arguing that the amendments to the charge did not affect the validity of the notice to Petitioner because it did not change the "essence" or the "theory" of the case. They claim that Petitioner has to show how his ability to defend against the that, however, the preliminary hearing officer permitted DOCCS to amend the location of the incident. She then violated Petitioner's due process rights when she "refused to grant the required two day notice adjournment for Petitioner to prepare a defense" pursuant to NYCRR 8005.3 (id. p 8). That refusal requires dismissal of the charges and vacatur of the warrant (id. p 9).
Petitioner also argues that the evidence at the preliminary hearing was insufficient to support a finding of probable cause. He argues that DOCCS must establish that there is probable cause to believe that the parolee has violated one or more of the conditions of release in an important respect. Relying on Curry v. City of Syracuse, 316 F.3d 324, 336 (2nd Cir 2003) and People v. Harewood, 63 A.D.2d 876,877 (1-st Dept 1978), Petitioner argues that in order to support a finding of probable cause to arrest, there must be a minimal inquiry to determine that the alleged parole violator not only intentionally resisted arrest but also that the arrest itself was authorized (id. p 11). But there was no competent evidence at the hearing before the court that a crime had taken place to support a warrantless arrest, "that the declarant had personal knowledge as to the basis for the arrest, or that the Petitioner was the perpetrator of any alleged crime justifying an arrest" (id. p 12). Rather, the evidence at the hearing established only that Petitioner flailed his arms while being handcuffed (id. p 12-13). Moreover, the preliminary hearing officer refused to allow counsel to question the witness regarding the manner in which Petitioner allegedly flailed his arms and refused to permit an officer with personal knowledge for the basis of his arrest to testify, thus denying Petitioner his right to confront that officer as an adverse witness (id. p 13).
Respondents oppose the motion in its entirety, arguing that the amendments to the charge did not affect the validity of the notice to Petitioner because it did not change the "essence" or the "theory" of the case. They claim that Petitioner has to show how his ability to defend against the charges was rendered inadequate without additional notice after the amendment (Cheng Aff in Opp ¶ 23). To the extent that Petitioner relies on the Criminal Procedure Law and Penal Law in support of his motion, Respondents note that parole revocation hearings are governed by the Executive Law (id. ¶ 24). Respondents also claim that DOCCS was not required to prove at the preliminary hearing that Petitioner's arrest was lawful because preliminary hearings are administrative in nature and the criminal law does not apply. Finally, Respondents claim that even if the court were to hold that the preliminary hearing did not comport with due process, the proper remedy is a new preliminary hearing, not Petitioner's release.
Respondents' claim that this petition should be transferred to the Appellate Division because it raises the issue of substantial evidence under CPLR § 7803(4) and because Petitioner had unpaid bail fails. The criminal case that arose out of these facts has been dismissed. In any event, while it was pending, bail was set in the amount of one dollar to provide for jail time credit (Elgarten Reply Aff, Exh A). Petitioner's petition for a writ of habeas corpus is brought pursuant to CPLR Article 70, which specifically provides, in relevant part, that a petition for a writ "shall be made to ... the supreme court in the judicial district in which the person is detained; or ... the appellate division in the department in which the person is detained" (CPLR §§ 7002[b][1], [2]).
The certification of Karen McQuade of The Mechanical Secretary, Inc., attached to Respondent's Exhibit F states, "Transcribers Note: Audio went in and out resulting in many inaudibles" (Respondent's Exhibit F p 45). Indeed, this court counts approximately 37 instances in the transcript that read "cd going in and out, inaudible" and 13 instances that simply state "inaudible." Executive Law Section 259-i(6) states, "Record of proceeding. The board shall provide for the making of verbatim record of each New York State Board of Parole interview, parole release hearing, preliminary hearing, revocation and appeal." Neither party has raised any issue concerning the inaudibility of these portions of the transcript, and in any event the record is sufficient for this court to address the Petition on the merits.
As Respondents correctly note (Cheng Aff in Opp ¶ 29), a preliminary parole revocation proceeding is meant to be informal, People ex rel Korn v. New York State Division of Parole, et al, 274 A.D.2d 439,439-40 (2d Dept 2000), and the formal rules of evidence and confrontation that apply in a criminal trial may be relaxed, People ex rel. Ciccone v. Warden, 57 Misc.3d 349, 353 (Sup Ct, Bronx County 2017) ("it is well-settled that the strict rules of evidence are relaxed at a parole revocation hearing and that hearsay evidence is admissible [citation omitted]"). But the hearing must nevertheless afford the parolee due process. People ex rel. Rosenfeld v. Sposato, 87 A.D.3d 665,66667 (2d Dept 2011) (due process violation supported habeas corpus relief, where parolee was given no opportunity to cross-examine parole officer who prepared violation of parole report and hearing officer "did not consider the general preference for confrontation, the objective or subjective nature of the contents of the report, whether cross-examination of the parole officer would aid the factfinding process, whether the evidence was cumulative, or what burden would be placed on the State in producing the witness"). For the reasons that follow, this court holds that a combination of rulings by the hearing officer deprived Petitioner of due process. Therefore, the writ must be granted.
As Respondents correctly argue, this and other courts have held that generally an amendment to the charge on which the Division of Parole chooses to proceed does not deprive the parolee of due process, see Cheng Aff ¶ 21 and the cases cited there. Here, however, the charge was amended after the hearing had already begun. Moreover, by amending the charge to change the location of I Petitioner's allegedly violative behavior from inside a police precinct to a public street comer, Petitioner was unable to present the defense he had prepared, namely, that as a matter of law one i cannot resist arrest once one is already in police custody. People v. Hasenflue, supra. Respondents dismissively characterize this defense as "carelessly" chosen and "hyper-technical," and argue that this amendment to the location of the alleged parole violation in the middle of the preliminary hearing "did not diminish [counsel's] ability to prepare another defense" (Cheng Aff in Opp ¶ 22). The court disagrees. After all, the purpose of the three-day notice provision of Executive Law § 259- i(3)(c)(iii) "is to ensure the releasee is notified of the violations against him within a sufficient time to investigate and prepare a defense for the preliminary hearing," People ex rel. Allen v. Warden of George Motcham Detention Center, 39 Misc.3d 546,549 (Sup Ct, Bronx County 2013). The hearing officer declined to adjourn the hearing, and told counsel he could have five minutes in the middle of the preliminary hearing to speak with Petitioner. In this court's view, this was hardly sufficient to allow time to prepare to meet the amended charge.
The witness called by the parole officer had no personal knowledge of why Petitioner was being arrested. Yet while the arresting officer was present and could have been called to testify, the hearing officer did not have the parole officer call that witness. The hearing officer also curtailed Petitioner's cross-examination of the only witness who was called to testify.
Under all of these circumstances, this court holds that Petitioner was denied due process at the preliminary parole hearing. Accordingly, the Petition is sustained.,
Conclusion
For all of these reasons, the writ of habeas corpus is sustained, the parole is warrant vacated and the Petitioner is to be reinstated to parole supervision unless he is currently incarcerated on the basis of some other warrant or commitment not predicated on an alleged violation of parole. See People ex rel Rosenfeld, v Sposato, supra (where petitioner was deprived of due process at preliminary parole revocation hearing, writ sustained, parole warrant vacated and petitioner restored to parole status).
This constitutes the decision and order of this Court.