This is a CPLR Article 70 special proceeding, whereby Petitioner Ricky Patterson (hereinafter Petitioner)^[FN1] seeks a habeas corpus writ ordering his release from Respondents' custody upon grounds that his preliminary parole revocation hearing was not conducted in a timely fashion as required pursuant to Executive Law §259-i(3)(c)(iv). In this regard, Petitioner says his constitutional (Const. Amend. VI) and statutory (Exec. Law §259-i [3][c][iii]) rights to confront and cross examine adverse witnesses and his constitutional right to due process (Const. Amend. XIV[§ 1]) were violated. Respondents oppose the petition arguing that Petitioner's claims are without merit.

Petitioner wants the Court to compel the Warden of Rikers Island Correctional Center and the New York State Department of Correction and Community Supervision (hereinafter, DOCCS) to vacate Parole Warrant #631156 and cancel any parole delinquencies. While DOCCS charged Petitioner with five parole [*2]violations, occurring between February 27 and March 7, 2012, the hearing officer determined that probable cause existed to proceed only as to "Charge 1," that is, Petitioner's failure to meet with his parole officer (see, Exhibits B, F, and H).

In evaluating the instant application, the Court calculates the three day period for service of the Notice of Preliminary Hearing as prescribed under Executive Law §259-I. That Executive Law provision provides, in pertinent part, that an alleged violator shall, within three days of "execution" of a warrant, be given written notice of the time, place and purpose of the preliminary hearing. The notice must state what conditions of parole or post-release supervision are alleged to have been violated, and in what manner. The preliminary hearing itself must be scheduled to take place no later than fifteen days from the date of the warrant's execution with the standard of proof at a preliminary hearing being probable cause to believe that the person under post-release supervision violated one or more conditions of his supervision in an important respect.

This application turns on an interpretation of the statutory phraseology "execution of a warrant" for purposes of the three days service rule (see, People ex rel. Kato v. George Motchan Detention Center , 27 Misc 3d 1213A [Sup. Ct. Bronx 2010]). A parole violation warrant is executed against a parolee "by taking such person and having him detained" (see, Exec. L.§259-i[3][a][ii]) (see also, People ex rel. Morant v. Warden, Rikers Is., 35 AD3d 208 [1st Dept. 2006], lv. den'd, 8 NY3d 809 [2007]). Execution requires the warrant be the cause of the parolee's detention (see, Moody v. Daggett, 429 US 78 [1976]).

The Supreme Court in Moody teaches that execution of a warrant and custody under that warrant are operative events triggering any loss of liberty attendant upon parole revocation. Liberty loss does not occur until a parolee is taken into custody under warrant; lodging of a warrant against a parolee who is already detained for another reason is not synoumous with execution of a warrant (Id.). Lodging a parole warrant against a parolee detained on another case does no more than express an intent to defer consideration of parole revocation to a later time (see, Heath v. United States Parole Com., 788 F2d 85 (2nd Cir. 1986). The Heath Court found that the warrant issued against Heath apparently was never executed, but lodged instead as a "detainer" (Id.). Placing a detainer against a parolee arrested upon an intervening charge does not constitute execution of the warrant and does not start the three day period in issue.

In his original pro se ^[FN2] petition, Petitioner alleges DOCCS lodged the warrant on March 13, 2012, but no attempt was made to serve him during the next three days (March 14, 15 and 16) (Executive Law §259-I [3][c]). When DOCCS finally tried service on March 17, 2012, Petitioner refused to meet with his parole officer at the Rikers facility ^[FN3] because, he claims, service was barred on "St. Patrick's Day," a day during which Petitioner mistakenly thinks no process is permitted in New York.^[FN4]

In the amended petition, movant's counsel affirms the St. Patrick's feast day reference but recrafts [*3]the issue as adversely affecting Petitioner's liberty interests when no written preliminary hearing notice was

given him within the three day statutory period. According to Petitioner's interpretation, service had to be completed by March 16, 2012, and failure to serve timely dictates that the warrant be voided (see generally, People ex rel. Smith v. New York State Bd. of Parole, 131 AD2d 401 [2nd Dept. 1987]).^[FN5]

In reply, DOCCS says Petitioner received timely notice of the charges. Alternatively, if any problems arose, it was caused by Petitioner's refusal to accept service. Further, Petitioner waived his objections when he refused to meet his parole officer at Rikers Island on St. Patrick's Day.

Background

In 1997, Petitioner was convicted in Queens County for Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.34); he was sentenced to an indeterminate sentence of eight to sixteen years (see, People v. Patterson, 266 AD2d 567 [2nd Dept. 1999]). Petitioner was released from incarceration on February 24, 2012, after agreeing to certain release conditions, including those in issue here, which continue in effect until 2016 (Exhibit A).

Within two weeks of release, Petitioner missed required meetings with his parole officer. Further, he was arrested in Kings County for Disorderly Conduct on March 4, 2012 (Penal Law §240.20) and five days later, for Criminal Possession of a Controlled Substance in the Third Degree (Penal Law §220.16) and Petit Larceny (Penal Law § 155.25) on March 7, 2012 (see Exhibit B, Charges 4 to 7).^[FN6] Another week, on March 14, 2012, Petitioner was arrested yet another time for Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §220.34) and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law §220.16).^[FN7]

Because of developments including the third set of arrests, the parole officer's supplementary charges added various release conditions not in dispute previously (see, Exhibit F). The parole officer attempted service on St. Patrick's Day apparently including additional charges, but Petitioner refused to meet her compelling the parole officer to leave the papers with the New York City Department of Corrections (See, Exhibit H). The preliminary hearing was scheduled for March 23, 2011, which was within 15 days of the warrant's lodging (Exhibit E, page 1). Nevertheless, because New York City Department of Corrections failed to produce Petitioner at the preliminary hearing, the administrative law judge adjourned the preliminary hearing to March 27, 2012, but Petitioner refused service of the adjournment notice (see, Exhibits G and H) and refused to appear at the rescheduled preliminary hearing, causing the administrative law judge to conduct the preliminary hearing in Petitioner's absence (Exhibit H). At the preliminary hearing, the hearing officer determined probable cause exists that Petitioner infracted the Violation of Release Report's Charge 1 (Exhibit B). That charge was that Petitioner stopped attending his scheduled weekly meeting with his parole officer, an obligation imposed by his release conditions (see, Exhibit A and H).

Petitioner's Position

In essence, Petitioner says lack of timely notice of the preliminary hearing denied him his [*4]constitutional right to confront his accusers (see generally, People ex rel. Johnson v. New York State Bd. of Parole, 98 AD2d 949 [4th Dept. 1983]) and the only relief is that he be released.^[FN8] DOCCS says Petitioner received timely notice and no argument exists against finding that Petitioner waived service when he refused to meet his parole officer at Rikers Island on March 17, 2012. DOCCS says the warrant was lodged on March 14, 2012, and that date is used to calculate the proper date for service and holding the preliminary hearing.

Using Respondents' calculation, St Patrick's Day was the last day to timely serve. Stated another way, Petitioner's service refusal on March 17, 2012, and the lack of prejudice from the delay, justifies the writ petition's dismissal (see generally, People ex rel. Barber v.Warden, Rikers Island Correctional Center, 33 Mic.3d 1201(A) [Sup Ct. Bronx 2012]). In other words, Petitioner'sabused the correctional system to frustrate service and cannot be rewarded for his conduct. Under any view, Petitioner's refusal to sign the undelivered defendant form (Exhibit I) is a waiver of his right to be present at the hearing (see, People v. Brooks, 308 AD2d 99 [2nd Dept 2004]).^[FN9] Further, if the preliminary hearing failed to comport to due process standards, the proper remedy is a new preliminary hearing and not the warrant's dismissal (see generally, People ex rel. Hickman v. Russi, 257 AD2d 457 [1st Dept. 1999]).

Legal Discussion

Executive Law § 259-i requires that a parole violator receive notice of the claimed parole violations listing the date of the scheduled preliminary hearing within three days of execution of the warrant (see, Executive Law § 259-i[3][c][iii]). As previously discussed, the controlling factor whether Petitioner received timely notice is determining when the warrant was executed (see generally, People ex rel. Gonzales v. Dalsheim, 52 NY2d 9 [1980])(legislature mandates preliminary revocation hearing be held within 15 days of execution of warrant).

The statutory notice must be timely and inform petitioner of charges against him (see generally, People ex rel. Davis v. Warden, Anna M. Kross Center NY State Div. of Parole, 31 Misc 3d 1230[A][Sup Ct. Bronx 2011]). Within three days of the warrant's lodging, the alleged violator must receive written notice of the time, place and purpose of a preliminary revocation hearing (see, Executive Law § 259-i[3][c][iii]). As the Court understands, the only issue presented in this case is timeliness as to the three day notice.

The Court notes that failure to strictly adhere to the three day notice period may not be fatal to parole violation proceedings under some circumstances (unlike strict adherence to the 15 day period in which a preliminary hearing must be held). It is axiomatic that an alleged parole violator must receive notice of the allegations before the preliminary hearing (see generally, People ex rel. Washington v. New York State Division of Parole, 279 AD2d 379 [2nd Dept. 2001]; People ex rel. Davis v. Warden, Anna M. Kross Center NY State Div. of Parole, supra.), but the instant situation is complicated by the fact that Petitioner did not appear at the preliminary hearing when the administrative law judge found probable cause(see generally, People ex rel. Williams v. Walsh, 241 AD2d 979 [4th Dept. 1997]).

Concerning whether Petitioner was denied a timely preliminary hearing because he was not served with notice within three days of execution of the warrant, the Court finds that it cannot decide the timeliness issue without the parties properly addressing this issue in their papers. It is especially true in light of the Supplemental Notice of Violation (Exhibit F) and evidence that the warrant was not lodged until March 14, 2012 (see, Exhibit E). The Court needs clarification of the parties' views concerning under what [*5]circumstances Petitioner was incarcerated during the time when his parole officer attempted service of the three day notice and whether Petitioner was at Rikers Island independent of parole violations.

Therefore, the parties are granted leave to address the factual and legal issues surrounding calculating the warrant's timeliness, especially in light of the Supplemental Violation of Parole Report (Exhibit F). In this regard, the Parties are to present the Court with a narrative explaining Petitioner's status at the time of preliminary notice service and the legal basis supporting their view of calculating the preliminary hearing's three days notice period. Further, Respondents are to provide the Court with legible and complete copies of Exhibits I, J, and L on or before 30 days after the entry of this decision and order and inform the Court as to any pending criminal matters involving Petitioner.

WHEREFORE, it is hereby ^[FN10]

ORDERED that the branch of the Petition, seeking release of Petitioner from Respondents' custody, is GRANTED to the extent the Parties are granted leave to address the issue of what date the calculation of timeliness begins, especially in light of the Match 14, 2012 date of lodging the warrant (Exhibit E) and issuance of the Supplemental Violation of Parole Report (Exhibit F); and it is

ORDERED that the Parties are to advise the Court as to the status of Petitioner's Final Revocation Hearing and stipulate the administrative record of such hearing, and it is

ORDERED that Respondents are to provide the Court with legible copies of Exhibits I, J, and L (with attachments); and it is

ORDERED that any submissions regarding the proper calculation and the disposition of the Final Revocation Hearing are to be filed with the Part Clerk on or before 30 days after the entry of this decision and order; and it is

ORDERED that the branch of the Petition seeking to vacate the parole violation warrant against Petitioner is STAYED.

The foregoing constitutes the decision and order of this Court.

Dated: Bronx, New York

August 24, 2012

HON. DOMINIC R. MASSARO, JSC