Petitioner moves by writ of habeas corpus for an order vacating his parole warrant and releasing him from the custody of New York State Division of Parole (Division). By petition submitted April 10, 2013, petitioner asserts that he is being illegally detained because the Division abrogated his right to due process pursuant to Executive Law § 259-i (3) (f) (v) in that their finding of probable cause was supported entirely by hearsay allegations. By decision dated June 17, 2013, this court dismissed petitioner's writ. This expands that decision.

On, November 27, 2007, judgment was entered against petitioner in Supreme Court, Kings County (Murphy, J.), convicting him upon his guilty plea of assault in the first degree (Penal Law § 120.10) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16). Petitioner was sentenced to a determinate term of five years imprisonment followed by a five-year period of post-release supervision on the assault count, and a definite term of one year imprisonment on the possession count to be served concurrently with the five-year term of imprisonment.

On or about September 7, 2011, petitioner was conditionally released and scheduled to be supervised by DOCCS until September 7, 2016. In connection with his conditional release, petitioner signed a document entitled "Certificate of Release to Parole Supervision" (see Respondent's Exhibit A). By signing this document, petitioner agreed to comply with the terms and conditions set forth in it, which included the following:

CONDITIONS OF RELEASE

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8. I will not behave in such manner as to violate the provisions of any law to which I am subject which provide for a penalty of imprisonment, nor will my behavior threaten the safety or well-being of myself or others.

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On November 13, 2012, petitioner was arrested and charged with strangulation in the first degree, and robbery in the third degree.

On November 17, 2012, petitioner was arrested and charged with unauthorized use of a motor vehicle in the third degree, and other related traffic infractions.

On December 12, 2012, DOCCS issued a Violation of Release Report charging petitioner with violating the above-stated condition of parole (see Respondent's Exhibit D).

On January 5, 2013, petitioner was arrested yet again, this time for reckless endangerment in the third degree, resisting arrest, obstructing governmental administration in the second degree, and two unspecified violations. Based on these circumstances, DOCCS issued a supplemental Violation of Release Report, and petitioner was declared delinquent (see Respondent's Exhibit F).

On January 22, 2013, DOCCS issued Parole Warrant No. 656711 (the warrant) and lodged it against Petitioner. On January 24, 2013, Parol Officer Manderson (PO Manderson) served petitioner with the Notice of Violation, the Violation of Release Report, and notice of the preliminary hearing. Petitioner elected to have a preliminary parole revocation hearing, which was scheduled for February 1, 2013 (see Respondent's Exhibit H).

At the preliminary hearing, Police Officer Maniscalco (PO Maniscalco) testified that after arresting the petitioner, he escorted him to the precinct for processing. There, PO Maniscalco's sergeant ordered the petitioner strip-searched, which PO Maniscalco conducted in the presence of both the sergeant and Officer Williams. PO Maniscalco stated that upon removing his underwear, he observed 14 bags containing a green leafy substance. PO Williams then removed the bags, and performed a field test on the contents of one bag in the presence of both the [*3]sergeant and PO Maniscalco.^[FN1] The bags were vouchered under NYPD Property Clerk Invoice #3000164623. That voucher, which was admitted into evidence as Exhibit 2, indicates that the substance tested positive for marijuana. It should be noted, however, that the field test report itself was not offered into evidence.

On February 1, 2013, Hearing Officer Sol Chamorro (HO Chamorro) found probable cause that petitioner violated the conditions of his release.

EL 259-i (3) (f) (v) provides that suspected parole violators at the revocation hearing . . . have the right to confront and cross-examine adverse witnesses, unless there is good cause for their non-attendance as determined by the presiding officer present witnesses and documentary evidence in defense of the charges; and present witnesses and documentary evidence relevant to the question whether reincarceration of the alleged violator is appropriate (EL 259-i [3] [f] [v]).

Petitioner claims that the hearing officer's finding of probable cause was based entirely upon hearsay evidence. Specifically, he argues that DOCCS failed to present any non-hearsay evidence at the preliminary hearing. As such, his statutory right to properly confront and cross-examine adverse witnesses was effectively abrogated. Petitioner further maintains that because DOCCS was within the required 15-day period to conduct a preliminary hearing, it remained obligated to present PO Williams, who personally performed the field test. This court disagrees.

Generally, the rules of evidence need not be strictly adhered to at administrative proceedings (see People v Rennie, 190 AD2d 830 [2nd Dept], lv denied 81 NY2d 975 [1993]; People v Machia, 96 AD2d 1113 [3rd Dept 1983] ["A finding of a probation violation . . . must be based upon a preponderance of the evidence . . . which requires a residuum of competent legal evidence in the record"]). Specifically, at a preliminary parole revocation hearing, it is well established that hearsay evidence is admissible (People ex rel. Mahmood v Warden, Sup Ct, Bronx County, Oct. 25, 2010, Marvin, J., index No. 251251-10; People ex rel. Saenz v N.Y.S. Division of Parole, Sup Ct, Bronx County, Apr. 19, 2010, Villegas, J., index No. 252309-09; People ex rel. Garner v Warden, Sup Ct, Bronx County, May 26, 2009, Marcus, J., index No. 250469-09; see People ex rel. Vega v Smith, 66 NY2d 130, 139 [1973]). It is also well established, however, that a finding of a parole or probation violation requires it not be based on hearsay evidence alone (see Rennie at 830 [2nd Dept], lv denied81 NY2d 975 [1993]; Machia at 1113 [3rd Dept 1983].

Here, DOCCS presented testimony from both the arresting and parole officers concerning the details surrounding petitioner's arrest and strip-search. Furthermore, PO Maniscalco testified to personally observing the discovery of the 14 bags of marijuana, and the performance of the field test. While petitioner's argument that the failure to offer direct testimony regarding the field test or the field test report renders the evidence presented void of any non-hearsay merits serious consideration, it overlooks PO Maniscalco's testimony based on his observations. As such, [*4]whether the notation on the NYPD Property Clerk Invoice that the substance tested positive for marijuana constitutes hearsay is of no moment. Given, then, that the evidence presented included some non-hearsay testimony, albeit minimal, this court concludes hearing officer's probable cause finding was not solely predicated on hearsay.

B. Dismissal of Criminal Complaint

During closing argument, petitioner argued the hearing officer should have considered that the criminal complaint charging him with unlawful possession of marijuana was dismissed at arraignment. He is incorrect. Parolees are not entitled to the same array of rights as defendants in a criminal proceeding (US v Carlton, 442 F3d 802 [2d Cir 2006]). "While the revocation of parole requires that due process be afforded . . . it is not the same as that required at a final hearing or a criminal trial" (People ex rel. Garner v Warden, Sup Ct, Bronx County, May 26, 2009, Marcus, J., index No. 250469-09).

First, this court notes that absent a particularized statement from the Office of the District Attorney, the law enforcement agency responsible for making such determinations, drawing any inference from such dismissal would be pure conjecture. More significantly, even if the basis for dismissal was a lack of probable cause to arrest, merely because it was insufficient to sustain a criminal prosecution has little, if any, bearing on its sufficiency to substantiate a finding that petitioner violated his parole. As noted, PO Maniscalco testified that he observed the petitioner in possession of 14 bags containing a substance he recognized as marijuana. Such recognition was based on his training and familiarity with the look, feel, and packaging of marijuana. As also indicated, he was present for the field test confirming that the substance was marijuana. For purposes of the hearing officer's finding of probable cause that petitioner violated the terms and conditions of his parole, such testimony was more than sufficient.

Based on the reasons stated above, this court finds DOCCS timely and properly conducted petitioner's preliminary parole revocation hearing as required by EL 259-i (3) (f) (v). Petitioner's writ of habeas corpus must therefore be dismissed.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

Dated: July 8, 2013

E N T E R

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Richard Lee Price, J.S.C.