By writ of habeas corpus submitted July 30, 2014, petitioner moved for an order vacating his parole warrant and releasing him from the custody of New York State Department of Corrections and Community Supervision (DOCCS or Respondent) on the basis that he is being [*2]illegally detained in violation of the Due Process Clauses of the Fourteenth Amendment of the United States Constitution and New York Constitution, article I, § 6, because DOCCS had previously discharged him from such supervision, and further seeks an order compelling DOCCS to correctly recalculate his incarceration time. Upon review of the parties' respective papers submitted in connection with this matter, the petition is dismissed.

On September 28, 2006, judgment was entered in Supreme Court, Bronx County, convicting petitioner of criminal sale of a controlled substance in the third degree (PL 220.39), and sentencing him to an indeterminate term of nine years imprisonment with a mandatory minimum period of three years. Judgment was also entered against him for his conviction of criminal sale of a controlled substance in the fifth degree (PL 220.31), for which a concurrent indeterminate term of three years imprisonment with a mandatory minimum period of one year was imposed.

On July 30, 2010, petitioner was conditionally released and scheduled to be supervised by DOCCS until August 13, 2014, barring any violations of the conditions of his release. In connection with his conditional release, petitioner signed a document entitled, "Certificate of Release to Parole Supervision" (see Respondents' Exhibit A). By signing this document, petitioner agreed to comply with the terms and conditions set forth in it, which included the following:

On January 25, 2012, petitioner was arrested and charged with grand larceny in the fourth degree and other related charges. DOCCS violated the petitioner, who elected to proceed with a preliminary parole revocation hearing. At that hearing, held on March 1, 2012, Hearing Officer Sol Chamorro (HO Chamorro) ordered parole warrant #606745 lifted because DOCCS failed to present its witnesses within the fifteen-day statutory period (see Executive Law § 259-i [3] [c] [i] and [iv]). HO Chamorro notified petitioner on the record that he was being returned to parole supervision, specifically instructing him to make a parole office report within 24 hours of being released from custody (See Respondents' Exhibit H, H. 4).

Subsequent to his release from Riker's Island Correctional Center, DOCCS alleged that petitioner violated the above conditions of release as follows: Rule #1 in that on April 12, 2013, and thereafter, he failed to make his office report within 24 hours of being released; Rule #2 for failing to make his office report on June 12, 2013; Rule #4 for changing his approved residence without prior discussion with and/or notifying his parole officer; Rule #8 for failing to appear as directed in Queens Criminal Court, which resulted in the issuance of a bench warrant; and, Rule #13 in that on April 12, 2013, and thereafter, he failed to report to the Queens III Area Office within 24 hours his release from Riker's Island. As a consequence of these events, DOCCS declared petitioner delinquent on June 12, 2013, and issued a Violation of Release Report (VRR) charging petitioner as indicated (see Respondents' Exhibit B; see also Respondents' Exhibit C).

On May 1, 2013, DOCCS issued Parole Warrant No. 631956, and lodged against petitioner on July 8, 2013. Petitioner was served with a copy of the VRR, and a preliminary parole revocation hearing was held on July 16, 2013 (see Respondents' Exhibit D). Upon the conclusion of the preliminary hearing, the hearing officer found that DOCCS established probable cause to believe petitioner had violated the conditions of release.

On August 14, 2013, at petitioner's Final Parole Revocation Hearing (final hearing), petitioner entered a guilty plea to VRR Charge #3 (violation of Rule #2 for failing to make his office report on June 12, 2013). Based on his plea, the DOCCS Administrative Law Judge sustained that charge and assessed petitioner with nine months of delinquent time (see Respondents' Exhibit E).

Petitioner now seeks habeas relief claiming that: 1) DOCCS is detaining him on a parole violation occurring after DOCCS discharged him from parole supervision; and, 2) DOCCS erroneously calculated his incarceration time. This court notes that while petitioner's first claim is properly brought as a petition seeking a writ of habeas corpus, his second claim, which challenges DOCCS' determination of his state prison time, is not. In the interest of judicial economy, however, this court will consider such portion of his petition as having been brought pursuant to CPLR Article 78, and converts it accordingly.

Petitioner asserts that on March 1, 2012, DOCCS discharged from parole supervision. He is wrong; DOCCS did no such thing. Petitioner bases his claim solely on a letter he received at the conclusion of the March 1, 2012, preliminary hearing in connection with a parole violation commenced as a consequence of his January 25, 2012, arrest. While it is true that letter stated [*3]the petitioner was "discharged from parole supervision" (Petitioner's Exhibit A), the record of that proceeding clearly indicates otherwise. Specifically, HO Chamorro stated, "This is a 15 day [sic] issue, and I have been advised by Officer Jordan that the witnesses are not coming" (Respondents' Exhibit H, H.3). The following colloquy then occurred:

Perhaps if all that had been presented to petitioner was the erroneous letter, he may indeed have been confused. But there is no mistaking or confusing HO Chamorro's notification on the record that petitioner would be restored to parole supervision or PO Jordan's explicitly clear directive to report within 24 hours of making bail. And, petitioner acknowledged as much. There is simply no plausible interpretation other than the duty of reporting continued. Petitioner, therefore, should have reasonably concluded the letter he received was an error. If, for some inexplicable reason, petitioner was in doubt, he had the option of seeking clarification from either parole revocation counsel or PO Jordan.

Finally, while not dispositive, this court finds it significant that at his final revocation hearing on August 4, 2013, petitioner entered a guilty plea in connection with warrant 631956 issued on May 1, 2013. As noted, that plea was for failing to report as directed at the March 1, 2012, preliminary hearing. Petitioner's plea, then, is unequivocal evidence he clearly understood that he had been returned to supervision, and had a continuing duty to report. His claim, therefore, is entirely unpersuasive.

Petitioner's other claim, that DOCCS miscalculated his incarceration time credit is meritless. DOCCS' Office of Sentencing Review makes clear that petitioner's maximum expiration date subsequent to his most recent parole revocation is March 15, 2015 (See Respondents' Exhibit G, 4). This claim, however, is predicated on the same erroneous letter. A review of DOCCS' thorough analysis of petitioner's several convictions and parole revocations wholly supports their conclusion that "[i]f the petitioner does not receive any additional terms of imprisonment or incur any additional parole violations, his 2006 sentences are expected to be completed on March 18, 2015" (id.). And, as the Attorney General correctly observes, "[p]etitioner himself does not contest this date as calculated, since his claim is premised exclusively on an alleged failure to account for the purported discharge from parole on March 1, 2012" (Affirmation in Opposition, ¶ 19).

Based on the reasons stated above, petitioner's claim that he is being illegally detained in violation of the Due Process Clauses of the Fourteenth Amendment of the United States Constitution and New York Constitution, article I, § 6, because DOCCS discharged him from parole supervision is without merit. Petitioner's application for a writ of habeas corpus is therefore dismissed. To the extent petitioner's application seeks Article 78 relief as to DOCCS' computation of his incarceration time credit, this court denies such relief in its entirety.

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.

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