Opinion
2017–0614
07-10-2017
In the Matter of the Application of Fulgencio RODRIGUEZ, Petitioner, v. NYS Division of Parole Chairperson Tina M. STANFORD, Respondent.
FULGENCIO RODRIGUEZ Pro Se. DEANNA R. NELSON, ESQ., New York State Attorney General's Office, Dulles State Office Building, 10th Floor 317 Washington Street Watertown NY 13601, Attorney for Respondent.
FULGENCIO RODRIGUEZ Pro Se.
DEANNA R. NELSON, ESQ., New York State Attorney General's Office, Dulles State Office Building, 10th Floor 317 Washington Street Watertown NY 13601, Attorney for Respondent.
James P. McClusky, J.
Petitioner Fulgencio Rodriguez is presently serving two 3 and ½ year determinate terms, running concurrently, after pleading guilty to two counts of Criminal Possession of a Controlled Substance in the third degree. Petitioner was released from DOCCS custody to parole supervision on May 21, 2015 after completing the Shock Incarceration Program. On June 25, 2015 Petitioner was declared delinquent and a warrant was issued. On August 26, 2016 a final revocation hearing was held and the Petitioner pled guilty to one parole violation charge. It was ordered he be held to his shock minimum and the delinquency date was changed to June 16, 2016. He is incarcerated at the Watertown Correctional Facility in Jefferson County.
Petitioner has filed this petition claiming that Petitioner should be able to withdraw his plea as it was not made knowingly and voluntarily, and that the time assessment he received from the Administrative Law Judge was excessive and improper.
Initially it is noted that Judicial review of Parole Board finding of a violation is limited, and even more limited is judicial review of the Board's judgment as to what it should do about the violation. See Fryar v. Travis 11 AD3d. 761 (3 Dept. 2004).
With respect to Petitioner's first contention that his plea was not made knowingly and voluntarily there appear to have been two calls for his revocation hearing. At the first, before ALJ Moravec, where there was discussion between the ALJ, the Parole Revocation Specialist, and the Petitioner's attorney that the Petitioner would be offered the minimum time, which was estimated to be 31 months, less his jail time credit of 191 days, and an adjustment to the lodge date of over 1 year to 06/16/2016, which Petitioner apparently understood would require him to serve approximately 17 months. It was also clearly stated that the Petitioner would not be offered Willard due to the serious nature of the charges and the fact that Petitioner absconded out of state. Ultimately there was no acceptance of the offer and the matter was put over for a contested hearing.
The matter was recalled later that day and was heard before ALJ Saunders. ALJ Saunders very clearly placed the offer on the record, noting that the Petitioner was a shock parolee subject to shock regulations, that the charge date would be amended from 06/30/2015 to the lodging date of 06/16/2016, that the Petitioner would be held to his shock minimum, estimated to be 31 months, but that ultimately the calculation would be done by DOCCS. Petitioner, after consultation with his counsel agreed and pled guilty to the amended charge. At the end of the hearing the Petitioner asked the ALJ if "out of 31 months, I get 17 months?", at which point the Petitioner and his counsel had an off the record discussion before the matter was concluded.
Whatever confusion may have existed in the Petitioner's mind would not have been the result of the ALJ's failure to make the offer clear. Any questions in Petitioner's mind should have been cleared up with the assistance of his counsel. It is well settled that a plea to the parole violations was knowing, voluntary, and intelligent inasmuch as "[p]etitioner was represented by counsel ... and the Administrative Law Judge explained to him the substance of the plea agreement, which he indicated that he understood", Matter of Horace v. Annucci , 133 AD3d 1263, 1264 (NY App. Div. 4th Dep't Nov. 13, 2015) Matter of James v. Chairman of the NY State Bd. of Parole , 106 AD3d 1300, 1300, 965 NYS2d 235 [2013] ; see Matter of Steele v. New York State Div. of Parole , 123 AD3d 1170, 1170, 998 NYS2d 244 [2014] ).
Petitioner contends that the time assessment he received was excessive, and he should have been sent to the Willard drug treatment campus. Revocation of parole for shock releasees is governed by 9 NYCRR 8010.3(a) which states, in pertinent part:
"when a releasee, under the jurisdiction of the division after having been paroled based upon his or her successful completion of the shock incarceration program, is found to have violated one or more of the conditions of parole in an important respect, the presiding officer shall make a decision in accordance with section 8005.20 of these rules...if a releasee is not restored to supervision or the Willard drug treatment campus program, and the presiding officer directs that the violator be reincarcerated, said period of reincarceration shall be for at least a period of time equal to the minimum period of imprisonment imposed by the court.
Petitioner received the mandated minimum on his sentence—estimated to be 31 months at the time of the revocation hearing, so it cannot be said that the time assessed by the ALJ was excessive or arbitrary, and it was exactly as the Court promised.
For the reasons stated herein, it is
ORDERED, ADJUDGED AND DECREED that the petition herein is hereby denied and dismissed;