This Court executed a Writ of Habeas Corpus on March 28, 2006 directing the production of Bernard Davis this date, predicated upon his petition sworn to on February 1, 2006, and received by the Court on March 27, 2006. A Reply to the petition was received on March 29, 2006.

The undisputed facts are as follows. The Petitioner is a parolee, who was found in willful violation following a final parole revocation hearing held on July 28, 2005. By a final parole revocation decision dated August 3, 2005, he was "revoked and restored", subject to successful completion of the Willard program. Because of the sentence imposed on a charge of a Criminal Possession of a Controlled Substance in the Seventh Degree, which was the basis for the underlying violation, he was not free for transfer however, until October 5, 2005.^[FN1] He remained however, in the custody of the Nassau County Jail until January 10, 2006, when he was finally transferred to the custody of the Department of Correctional Services at the Ulster Correctional Facility Reception. He was thereafter transferred to Willard on February 21, 2006.

Ninety-seven days passed between when he was first free to be transferred to State custody and when such transfer occurred. Another forty-two days went by before he entered Willard. No explanation was provided for any of the delay.

The Petitioner does not assert that the findings and decision of the Parole Board were improper. He contends, rather, that his detention of 139 days between when he was available for transfer to Willard and the date of the actual transfer was illegal and that his immediate release is required. [*2]

The counsel for the Respondents argue that they are blameless for the period between October 5, 2005 through January 10, 2006. Pursuant to the Return, notice was provided to the Nassau County Jail in which the Petitioner was detained of the disposition of the parole revocation hearing. A written notice (Exhibit G) was also provided to the desk sergeant at the facility. The form provides identifying information for the Petitioner, and states the disposition of the parole hearing. Request for notification of availability is apparently implicit in the form. It is evident Parole never monitored the detention.

Counsel for the Respondents also asserts that the Respondents "took all steps necessary to secure [the Petitioner's transfer to Willard] subsequent to DOCS taking control of him on January 10, 2006. What those steps were, is unstated.

The Respondents argue two points. The first is that the Petitioner is deemed at this time to be on parole, and is thus not deprived of sufficient liberty interest to warrant habeas corpus relief. In support they cite the case of People ex rel. Morejohn v. NYS Board of Parole, 183 Misc 2d 435 (Supreme Ct., Bronx Co., 1999), which in dicta states "...since Willard is not a correctional facility, and initial placement in Willard does not constitute incarceration (Corrections Law 70(1)(c)), but is rather a condition of petitioner's parole. An individual placed on parole is not sufficiently restrained of liberty to be entitled to the extraordinary writ of habeas corpus." Supra at 437. Concededly, this Court has previously denied release of at least one parolee at Willard basing the denial upon Morejohn's dicta. (People ex rel. Ayala v. Williams, et al., 7 Misc 3d 1025 A, 2005 WL 1183200 (Supreme Ct., Seneca Co., 2006). This Court now rules however, that to the extent prior rulings were based solely on the argument that habeas corpus relief is never available to a parolee while in the Willard program, such was error. Habeas corpus relief is not only available to one in prison but also to one "otherwise restrained in his liberty". CPLR 7002(a). The Willard campus is surrounded by fence topped by razor wire. The campus is run similar to a boot camp, and the parolees are not free to leave. If a parolee cannot complete the program through no fault of his own, a review of the prior parole determination will result. If the parolee simply refuses to participate, a new violation of parole will be filed. In either case, the parolee will be incarcerated in a maximum security prison until a decision is made. It is also noted that when the petitioner appeared before this Court, he was transferred by two guards from DOCS, and was shackled. Clearly, liberty is substantially restrained. That Willard is not defined as a "correctional facility" (Corrections Law 70(1)(c)) is of no moment. It is the reality of the circumstances and not the title ascribed to them that matters.

The Respondents' second argument is that the petition must fail as the Petitioner's argument cannot result in a finding that the August 3, 2005 final parole decision is void. Respondents, the Return states, hold responsibility only for the time period of January 10, 2006 through February 21, 2006 and transfer of him to Willard within that 42-day period would be "reasonable", and in accordance with this Court's decision of Ayala v. Williams, supra. Any improper detention before that time, say the Respondents, is the fault of the Nassau County Jail. This Court disagrees.

"(O)nce revoked and restored subject to participation in the Willard program, a parolee has [*3]a due process right to be transferred to that program forthwith absent valid, enunciated reasons for not doing so." Id. Here, the petitioner was detained for 139 days before his transfer to Willard. Nothing is offered to explain why the first 97 days of detention was solely the responsibility of the Nassau County Jail, and nothing at all is offered to explain the remaining 42 days.

Generally speaking, a challenge cannot be made to a placement at Willard. It is a condition of parole and it is up to the Division of Parole to decide whether to send a violated parolee to Willard or release him to community-based supervision. However, because of the inordinate period of time the Petitioner was improperly detained, and especially since there has been absolutely no justification extended for it, the only appropriate solution consistent with the Petitioner's due process rights is to grant the petition. Id; People ex rel. Helen Dotterer v. Warden of Rose M. Singer Center, et al. (unpublished decision/order under Index No. 75075-05; Supreme Ct, County of Bronx, 2005). Release to the community under the supervision of the Division of Parole is hereby directed within ten (10) days.

THIS CONSTITUTES THE DECISION AND JUDGMENT OF THE COURT.

DATED: March 31, 2006

HON. DENNIS F. BENDER

Acting Supreme Court Justice