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People ex rel. Lewis v New York State Div. of Parole
2012 NY Slip Op 51259(U) [36 Misc 3d 1212(A)]
Decided on July 12, 2012
Supreme Court, Bronx County
Livote, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 12, 2012
Supreme Court, Bronx County


The People of the State of New York ex rel. Jerome Lewis, Petitioner

against

New York State Division of Parole, Warden, Warden of the Penitentiary or the City of New York, Rikers Island, New York, Respondents.




250810-12



Steven Banks, Esq.

The Legal Aid Society

Attorney For the Petitioner

199 Water Street

New York, NY 10038

BY:Kerry Elgarten, Esq.

Jeremy Fredericksen, Esq.

Eric T. Schneiderman, Esq.

Attorney General of the

State of New York

Attorney for Respondent,

Department of Corrections and

Community Supervision (DOCCS")

120 Broadway, 24th floor

New York, New York 10271

Leonard Livote, J.



The relator, Jerome Lewis, seeks a writ of habeas corpus on the grounds that his right to timely notice of the charges lodged against him and his right to a timely preliminary hearing were denied in violation of the Due Process Clause of the Fourteenth Amendment and the New York State Constitution and NY Executive Law §§ 259-i(3)(c)(i) and (iv).

Background


The relator was incarcerated for a 1997 conviction in Schenectady County Supreme Court for Assault in the First Degree, and received a sentence of seven (7) to fourteen (14) years.

On or about September 16, 2011, the relator was released to parole supervision, and agreed to adhere to certain conditions that the respondent, Department of Corrections and Community Supervision ("DOCCS"), imposed upon his release. Barring any violations of his conditions of release to parole supervision, the relator was to be supervised until January 4, 2013. As a condition of his release, the relator agreed to waive his right to contest extradition should he leave the state.

The relator was declared delinquent on January 5, 2012 and charged with violating two conditions of his release to parole supervision.

The sole cause or pretense of the relator's present detention is parole violation warrant No. 633070 issued and lodged against the relator by DOCCS.

On May 26, 2012, the relator was arrested in North Carolina. The only charge was the New York parole violation. On May 2, 2012, the Mecklenburg County Sheriff's office sent a fax to DOCCS containing instructions for picking up the defendant.

On May 4, 2012, Mr. Lewis was picked up by representatives from DOCCS, and served with a Notice of Violation and a violation of release report ("VOP"). Mr. Lewis elected to have a preliminary hearing, and it was scheduled for May 14, 2012.

On May 14, 2012, no parole officer or other representative from DOCCS appeared at the Rikers Island Judicial Center ("RIJC") to conduct Mr. Lewis's preliminary hearing. No explanation was provided for their non-appearance. Because there was no one from the DOCCS present, Hearing Officer Crawford adjourned Mr. Lewis's case to May 17, 2012.

On May 17, 2012, his preliminary hearing recommenced at the Rikers Island Judicial Center. At the hearing, Counsel for the relator objected to the hearing on the basis that more than fifteen (15) days had elapsed since the relator became available to the State of New York and since the Department of Corrections and Community Supervision had become aware that the relator was available. Counsel for the relator also noted that the relator had not been served with notice of the charges lodged against him in a timely fashion. Nonetheless, the hearing ensued and [*2]probable cause to believe that the relator had violated one or more of the terms and conditions of his parole were found.

Discussion


A parolee detained in another state must be given written notice of the preliminary hearing "within five [5] days of the execution of the warrant" (Executive Law § 259-i(3)(c)(iv)). The preliminary hearing must be scheduled "to take place no later than fifteen [15] days from the date of the execution OF the warrant" (Executive Law § 259-i(3)(c)(iv)).

When the warrant is executed is determined by Executive Law§ 259-i(3)(a)(iii), which states:
"Where the alleged violator is detained in another state pursuant to such warrant and is not under parole supervision pursuant to the uniform act for out-of-state parolee supervision or where an alleged violator under parole supervision pursuant to the uniform act for out-of-state parolee supervision is detained in a state other than the receiving state, the warrant will not be deemed to be executed until the alleged violator is detained exclusively on the basis of such warrant and the department has received notification that the alleged violator (A) has formally waived extradition to this state or (B) has been ordered extradited to this state pursuant to a judicial determination. The alleged violator will not be considered to be within the convenience and practical control of the department until the warrant is deemed to be executed."


Thus, the warrant is deemed executed when two elements are present. First, the relator must be "detained exclusively" on the New York warrant. Second, DOCCS must have notice that the relator either waived extradition or was ordered to be extradited.

With respect to the first element, the relator submits that the North Carolina complaint, which indicates no charges other than the New York warrant, is sufficient to establish that the relator was being held exclusively on the New York parole warrant. DOCCS does not offer any evidence in opposition. Accordingly, the Court finds that the relator was exclusively detained on the New York warrant.

With respect to the second element, DOCCS was aware that the relator had waived extradition as a condition of his parole. Thus, unless there was some indication that the waiver would not be honored, DOCCS had notice as soon as it learned that the relator was in custody. DOCCS concedes that they lodged the warrant on April 26, 2012. DOCCS was, therefore, aware that the relator was in custody on that date.

DOCCS maintains that notice was not received until DOCCS received the fax from the Mecklenburg County Sheriff's office on May 2, 2012. The body of the fax reads:
"You may pick this inmate up at any time/any day (24/7/365). The deadline for pick up is 15 days from the date of this fax. Please give as much notice as possible prior to pick up date as far as to when you will be arriving so that we may insure that all paperwork is correct and that there are no local charges pending.
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If you have any further questions, please contact me directly at any of the numbers listed above. When picking up, the 24 hour numbers will be the best for contact and making arrangements."


DOCCS argues that it was not notified that the relator was available for extradition prior to its receipt of this fax and, accordingly, the five (5) and fifteen (15) day periods did not begin to run until the fax was received. However, the relevant standard is not when the alleged violator is available for pickup, but when the warrant is deemed executed.

On the issue of when the warrant was deemed executed, the fax is irrelevant. It does not create any factual issues with respect to the relator being exclusively detained or DOCCS receiving notice of his waiver of extradition.

In a habeas corpus proceeding, an evidentiary hearing is not required if "upon the pleadings, papers and admissions ... no triable issues of fact are raised" (CPLR § 409[b]; People ex rel. Robertson v New York State Div. of Parole, 67 NY2d 197, 203 [1986]). In the instant case, the Court finds that the "pleadings, papers and admissions" are sufficient to establish that the parole warrant was executed on April 26, 2012. Accordingly, both the Notice of Violation and the preliminary hearing were untimely pursuant to the relevant statutes.

The requirement of timely parole revocation hearings must be "strictly construed" (People ex rel. Johnson v New York State Bd. of Parole, 71 AD2d 595, 418 N.Y.S.2d 418 [1979] ). The failure to comply with the fifteen day limit for holding the preliminary hearing requires that the relator be restored to parole even in the absence of a showing of prejudice (see, People ex rel. Thompson v Warden, Rikers Island Correctional , 41 AD3d 292 [1st Dept 2007]).

Accordingly, the writ of habeas corpus is sustained, parole warrant number 633070 is vacated and DOCCS is directed to restore the relator to parole status.

This constitutes the Decision and Order of the Court.

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A.J.S.C.