Petitioner pro se moves for a writ of habeas corpus on the grounds that his due process rights have been violated because Respondent failed to give him 14 day written notice of the date, place and time of his final parole revocation hearing as required by statute. In his supplemental petition, Petitioner further claims that since the criminal charges upon which the parole warrant are based terminated in his favor, he should be released from custody. Respondent opposes Petitioner's motion.

On December 22, 2006, Petitioner was convicted of Criminal Sale of a Controlled Substance in the Third Degree (PL §220.39) and was sentenced to four and a half to nine years incarceration.On July 11, 2013, Petitioner was released to parole supervision and agreed to

abide by the conditions that the Department of Corrections and Community Supervision (hereinafter DOCCS) imposed upon his release. Prior to his release, DOCCS informed him that his failure to follow these conditions would result in revocation of his parole. Barring any violations of his parole, Petitioner was to be supervised until June 8, 2021.

On September 23, 2013, Petitioner was arrested and charged with Petit Larceny (PL §155.25). Petitioner was again arrested on November 2, 2013, and charged with Criminal Possession of a Weapon in the Fourth Degree (PL §265.01), Criminal Possession of a Controlled Substance in the Seventh (PL§220.03), Petit Larceny (PL §155.25), and Menacing in the Third Degree (PL §120.15). Petitioner was declared delinquent as of September 23, 2013 and charged with violating eight conditions of his release to parole supervision.

On November 2, 2013, parole warrant number 669384 was issued against Petitioner. On November 6, 2013, the parole warrant was lodged and Petitioner was served with a copy of the Notice of Violation and Violation of Release Report, at which time he waived his right to a Preliminary Revocation Hearing.

Petitioner's Final Parole Revocation Hearing was scheduled for November 18, 2013. No hearing was held on that date and the matter was administratively adjourned to November 25, 2013. On November 25, 2013, the hearing was again adjourned to December 10, 2013 for notice and investigation. On December 3, 2013, Petitioner filed the instant Petition.

Law and Conclusions

The parolee and his attorney must be given written notice of the date time and place of the final hearing at least 14 days prior to the scheduled date (Executive Law §259-i[3][f][iii]). Failure to comply with the 14 day rule is grounds for issuing the writ and releasing the petitioner to parole (see People ex rel Smith v. New York State Board of Parole, 131 AD2d 401 [1st Dept 1987] People ex rel Betancourt, 149 AD2d 356 [1st Dept 1989]) Such timely notice must be given with accompanying and necessary papers (see Matter of Williams v. Hammock, 57 NY2d 936 (1982).

Originally, the Final Hearing was scheduled for November 18, 2013, which provided less than the required 14 days notice. On November 18, 2013, the Final Hearing was administratively adjourned to November 25, 2013, also providing less than the 14 days required. On November 25, 2013, Petitioner was produced for his Final Hearing and was represented by counsel. However, the minutes of November 25, 2013 reflect that Respondent was not prepared to go forward on that date and requested time to further investigate the case. The Final Hearing was [*2]adjourned to December 10, 2013, before a new administrative law judge and parole revocation specialist. Receipt of the Violation of Release Report was acknowledged by counsel. When asked by the judge if there were any writ issues, counsel for Mr. Williams stated that there were no writ issues. The colloquy, as reported in the minutes of November 25, 2013, support the determination that Petitioner and his attorney were given 14 day notice of the Final Hearing rescheduled for December 10, 2012 and the Violation of Release Report, satisfying the the 14 day notice requirement for the Final Hearing (see Hammock, supra).

Moreover, Petitioner's position, that he is entitled to release because criminal charges terminated in his favor is inaccurate. Even if a defendant has been acquitted of a criminal charge after trial, that charge may nonetheless serve as the basis of a parole violation by a preponderance of evidence at the Final Hearing (see People ex rel Singletary v. Dalsheim, 84 AD2d 553 [2d Dept 1981]. The Division may also seek to revoke parole on the basis of charge rejected by the grand jury (see People ex rel Thurman v. Williams, 275 AD2d 1022 [4th Dept 2000] People ex rel Pickett v. Ruffo, 96 AD2d 128 [3d Dept 1983]). However, as stated in Respondent's response, the termination of criminal charges in Petitioner's favor, " may be taken into consideration ... when determining whether or not to revoke Petitioner's parole and the term of any sentence given to Petitioner." (Respondent's Affirmation in Opposition p.4).

This constitutes the decision and order of the Court.

April 4, 2014______________________________Dominic R. Massaro, JSC