Relator Andre Dolberry ("Dolberry") petitions pro se for a Writ of Habeas Corpus seeking to vacate a parole warrant on the theory that Respondents failed to comply with Executive Law Section 259-I. For the reasons set forth below, the petition is denied.

After being convicted and sentenced for Reckless Endangerment in the First Degree, Dolberry is scheduled to remain under parole supervision until August 5, 2008. On January 12, 2007, however, Dolberry was arrested for possession of a loaded handgun and marijuana in Queens, New York. Bail was set in the amount of $15,000, and he remains incarcerated pursuant to that sentencing order. On February 6, 2007, the New York State Division of Parole ("Division") also lodged a parole warrant and served Dolberry with a Notice of Violation and Violation of Release Report. After a preliminary parole hearing held on February 20-21, 2007, it was determined that there was probable cause to believe that Dolberry had violated the terms and conditions of his parole. Thereafter, Dolberry postponed his right to a final parole revocation hearing pending resolution of the underlying criminal charges.

Dolberry's petition for a Writ is denied. First, even if he were to prevail on the merits here, Dolberry would not be entitled to immediate release from custody because he is being held on bail on the underlying criminal charges. See People ex rel. Brown v. New York State Div. of Parole, 70 NY2d 391, 398 (1987) (stating that "remedy of habeas corpus is unavailable" when parolee is being held on unrelated criminal charges because "success on the merits in this proceeding would not entitle him to immediate release from custody . . ."). Since Dolberry is being detained on bail on criminal charges, the Writ of Habeas Corpus is not available because he would not be entitled to immediate release from custody. Therefore, Dolberry's petition is [*2]denied.

Dolberry's petition fails on the merits in any event. Dolberry initially claims that he did not receive a written notice of his right to a preliminary parole hearing within 72 hours of his arrest in violation of Executive Law Section 259-I(3)(c)(iii). That claim is unavailing. Executive Law Section 259-I(3)(c)(iii) requires only that the alleged violator be given notice of the preliminary hearing within three days of execution of the parole warrant. Here, the parole warrant was executed on February 6, 2006 and the Notice of Violation and Violation of Release Report were served on Dolberry that same day. See Affirmation of Andrew Meier, Esq. dated June 6, 2006 at ¶¶7-8. Accordingly, there was no delay in serving Dolberry with the requisite notice. Dolberry also has not alleged any prejudice by the alleged delay in being served with notice of the preliminary hearing. See People ex rel. Thompson v. Warden, Rikers Is. Correctional Facility, 2007 NY Slip Op. 05434, 2007 WL 1775465 (1st Dept. Jun. 21, 2007).

Next, Dolberry claims that the Division impermissibly amended the charges against him at the preliminary parole hearing. The record shows that on February 20, 2007, Respondents notified Dolberry and his counsel that the charges numbered three and four were identical due to a typographical error, and that charge number four should have specified a violation of parole condition number eleven, instead of condition number eight. See, Minutes of 2/20/07 at 19-20. At the beginning of the continued hearing on February 21, 2007, charge number four was then amended accordingly. See, Minutes of 2/21/07 at 4-6. The remainder of the charges stayed the same. Therefore, Dolberry had "adequate notice of the claimed violations of parole pursuant to due process requirements." See People ex rel. Ward v. Sullivan, 137 AD2d 779 (2d Dept. 1988) (finding no due process violation even though "the parole violations charges incorrectly stated the numbers of the conditions of parole that the petitioner was accused of violating. . .").

Finally, Dolberry claims that there was insufficient evidence to sustain the finding of probable cause at the preliminary hearing. The record shows that on February 20, 2007, the police officer who recovered marijuana from Dolberry so testified, subject to cross-examination by Dolberry's counsel, but there was no laboratory analysis report confirming that the substance recovered was marijuana. See, Minutes of 2/20/07 at 9-21. The parole officer requested a one-day adjournment to obtain the laboratory report, which was granted by the hearing officer. See, Minutes of 2/20/07 at 24. On February 21, the laboratory analysis was introduced into evidence, but the police officer did not again testify to the recovery of marijuana from Dolberry; rather, the parole officer did. Dolberry claims that the failure of the police officer to testify again on February 21, 2007 is fatal to the Division's case because the hearing on February 21 was to be de novo. The Court disagrees.

The preliminary parole hearing "is intended to be informal and summary in nature, with only a minimal inquiry necessary to determine whether there is probable cause or reasonable grounds to believe that the parolee has committed acts that would constitute a violation of parole conditions." People ex rel. Calloway v. Skinner, 33 NY2d 23, 31 (1973). The "standard of proof at the preliminary hearing shall be probable cause" to believe that the parolee has violated one or more conditions of parole in an important respect. Executive Law § 259-I(3)(c)(iv). Under the circumstances, where a police officer has testified subject to cross-examination by defense counsel that Dolberry had marijuana (and a loaded handgun), a laboratory analysis has been introduced into evidence to show that Dolberry was in possession of marijuana, and the [*3]preliminary hearings have been conducted within the fifteen-day period required by Executive Law Section 259-I(3)(c)(iv), the Court upholds the finding that there was probable cause to believe Dolberry violated the conditions of parole.

The foregoing constitutes the Judgment of the Court.

Dated:August 21, 2007

Bronx, New York________________________

Joseph J. Dawson, A.S.C.J.