State of New York ex rel. Loster v Willard Drug Treatment Campus (2006 NY Slip Op 50766(U))

State of New York ex rel. Loster v Willard Drug Treatment Campus

2006 NY Slip Op 50766(U)

Decided on April 27, 2006

Supreme Court, Seneca County

Falvey, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through May 9, 2006; it will not be published in the printed Official Reports.

This court issued a Writ of Habeas Corpus on April 24, 2006 directing the above-named Respondent Superintendent of Willard Drug Treatment Campus to produce the body of Charles Loster, the Petitioner, before this court this on the 27th day of April, 2006.

The Petitioner appeared pro se, and the Respondent appeared by Emil J. Bove, Jr., Assistant Attorney General. The court has reviewed the petition and the return, and heard oral presentation. Based upon the same, the Court finds that the Petitioner was judicially sentenced on January 11, 2006, in Erie County Supreme Court to a determinate sentence of two years, with two years of post release supervision on the condition that he enter and complete the Willard Drug Treatment Campus Program. He was thereafter transferred to the custody of DOCS at the Ulster Facility Reception Center on January 27, 2006, and transferred to Willard on February 22, 2006. The petitioner submits he should have been transferred to Willard in accordance with the time frame set forth in CPL 410.91, and that since he was not, his due process rights have been violated.

Pursuant to CPL 410.91, this Petitioner should have been transferred to the Ulster reception center forthwith, and then transferred to Willard within ten days after receipt by Ulster. (CPL 410.91 & CPL 430.20). This Court interprets "forthwith" to mean within ten(10) days of the Petitioner's final parole revocation determination. Ayers v. Coughlin, 72 NY2d 346(1988). Thus, the Petitioner should have been transferred to Ulster no later than January 21, 2006, and received by Willard no later than January 31, 2006.

Here the record is totally devoid of any explanation for why 43 days passed before transfer to the Willard Campus occurred. This Court finds that the Petitioner has been and is detained in violation of his constitutional rights to due process. It is accordingly

ORDERED, that the Petitioner shall be released and restored to community based parole supervision forthwith, which the Court interprets to mean within ten (10) days hereof.

DATED: April 27, 2006