In a decision and order dated January 23, 2014, this Court ordered a hearing on Petitioner Christopher Brown's claim that his waiver of a preliminary hearing was invalid because he was unaware of all of the charges in the Violation of Release Report and the Supplementary Violation of Release Reports when he entered the waiver.^[FN1] This Court conducted a hearing on June 30, 2014, [*2]and August 28, 2014, to determine which charges had been served on Petitioner when he entered the waiver. For the reasons that follow, this proceeding is dismissed.

This Court has reviewed the Verified Petition for a writ of habeas corpus and attached exhibits; the Affirmation in Opposition to the Petition for a writ of habeas corpus and attached exhibits; the Affirmation in Reply to Opposition to writ of habeas corpus; the Post-Hearing Affirmation in Support of Petition; the Affirmation in Response to Petitioner's Post-Hearing Affirmation; the exhibits and testimony from the hearing; and the transcript of the proceedings on Riker's Island on October 18, 2013. Based on the foregoing, I make the following findings of fact relevant to the issue raised by Petitioner.

Petitioner was declared delinquent as of August 15, 2013, and parole warrant # 673896 was subsequently issued. The original Violation of Release Report (DOCCS Exh B) listed two charges, alleging that Petitioner failed to make his office report on August 15, 2013, and failed to notify his parole officer that he had changed his address. On August 30, 2013, a Supplementary Violation of Release Report was prepared, alleging 11 additional violations of Petitioner's conditions of release. For the most part, these charges related to Petitioner's alleged contact with and conduct towards Tatiana Talley on August 11 and 12, 2013 (DOCCS Exh F). On October 4, 2013, Petitioner was arrested and subsequently indicted for Criminal Contempt in the First Degree and other related charges (see fn. 1, supra). The parties agree that parole warrant # 673896 was lodged on October 4, 2013. The parties also agree that on October 7, 2013, Petitioner was served with the Notice of Violation and waived his right to a preliminary hearing.

A second Supplementary Violation of Release Report was prepared on October 10, 2013. It alleged that on October 4, 2013, at approximately 6:00 PM, in front of 309 MacDougal Street, Brooklyn, New York, Petitioner violated an order of protection (Charge 14) and that on October 4, 2013, and immediately thereafter Petitioner failed to notify his parole officer of his arrest (Charge 15) (DOCCS Exh H).

Parole Officer Angie Ramirez was assigned to supervise Petitioner on May 21, 2013 (H 28).^[FN2] She met with him seven times, during office and home visits as well as on Riker's Island (id.). On July 18, 2013, Petitioner reported to Ramirez in her office and was instructed to report again (id.). Thereafter, Petitioner was declared delinquent, meaning that he had violated one or more of the conditions of his release when he stopped reporting as directed (H 30). Ramirez prepared a Violation of Release report on August 26, 2013, containing Charges 1 and 2 (H 31). Ramirez also prepared a Supplementary Violation of Release Report on August 30, 2013, containing Charges 3 through 13 (H 33, 38; Respondent's Exhibit 2). Ramirez testified that she served Petitioner with Charges 1 through 13 at Otis Bantum Correctional Center ("OBCC") at Riker's Island on October 7, 2013 (H 37). In her experience as a parole officer, she always served a parolee with all of the charges she had prepared as of the date she served the parolee, and there had never been a time when she did not serve a parolee with all of the charges she had written up (H 38). Although she had no reason to believe that she had failed to serve Petitioner with all of the charges prepared as of the date she served him, Ramirez did not recall how many pages she served on Petitioner and did not have [*3]him initial any of the pages of the Violation of Release Report (H 39, 45). Moreover, although Petitioner signed the 9011 Form waiving his right to a preliminary hearing, that form did not indicate the number or nature of the charges (H 45, 46).

Ramirez met Petitioner at the OBCC on October 7, 2013, where she gave him six or seven pages folded neatly in an envelope (H 115-16). There were only five charges in this paperwork, two charges on one page and three charges on another page (H 117-118). Petitioner decided to waive his preliminary hearing, believing that the Division could go forward on every charge at a preliminary hearing but that it would only proceed on a single charge at a final hearing (H 117). When Petitioner met his attorney, Claudia Romano, an attorney with the Parole Revocation Defense Unit of the Legal Aid Society, on October 18, 2013, he was surprised when she told him that there were fourteen or fifteen charges, because he thought he had only five charges (H 122). Petitioner pulled out the envelope containing the papers given to him by Ramirez and showed them to Romano (H 122). Petitioner conceded that his decision to waive the preliminary hearing "probably" would not have been different if he had been served with "more charges" (H 126).

On October 18, 2013, Romano represented Petitioner at an arraignment shift at the Riker's Island Judicial Center (H 49, 50, 51). According to her:

When I went to meet with him [that day], I called him out and I indicated that he had fifteen charges against him and he looked at me like I was - - he said, you mean five? And I said no. Fifteen. And he had no - - he appeared to have no clue what I was talking about. So I said okay, calm down. Let's see, you know, what the situation is.

Q. Did you ask Mr. Brown for his papers?

A. I did.

Q. Did he have them with him?

A. He did.

Q. Do you recall the condition that the documents were in?

A. Yes, I actually do. They were folded and they were stapled and he - - I know what papers he had and/or what he provided to me, what he had with him that day.

Q. Could you describe what papers he had with him that day?

A. Yes, he had his 9011, which is a notice of violation. He also had a page that had charges one and two. He had another piece of paper that had charges three, four and five. He had a certificate of release and he had also special conditions, and I believe he had also had a page that might have been like a criminal record.

Parole Revocation Specialist Elaine Kallinikos appeared as the arraignment specialist for DOCCS before Administrative Law Judge (ALJ) Maccario (Petitioner's Exh A, Mins of 10/18/13). ALJ Maccario noted that Petitioner had his papers "[e]xcept for the charges that the Division notes that they will be serving the supplemental charges" (id. at p 2).

THE COURT: Although they were already contained in the Violation Report, we have up to a charge fifteen rule six but the Division notes that they will be serving those charges formally on Releasee, correct?

MISS ELAINE KALLINIKOS: Yes.

THE COURT: Allright.

MISS ELAINE KALLINIKOS: Okay, I will do that now. I'm serving upon Mr. Brown a supplemental Violation Report with the original VOP that received with charges six through fifteen dated 9/13/13.

According to Gayle Walthall, the Regional Director of the New York State Department of Corrections and Community Supervision, "[t]he violation of release report is the report that must be prepared so that the warrant can be issued. Those are the charges which form the basis for the warrant" (H 13). Thus for example, if a parolee failed to report and absconded, a violation of release report would be prepared and a warrant would be issued. If that same parolee were subsequently arrested on a new charge, NYSDOCCS would address those charges in a supplemental violation report (id.). According to Walthall, a parolee is not entitled to a preliminary hearing on supplemental charges, because

Q. If the parolee is served with two reports, a violation of release report and then a [*5]supplemental violation of release report, given that there are two sets of violations of release reports, what charges can parole proceed with as a matter of its policy and procedure at the preliminary hearing in order to establish probable cause.

A. We don't call them the same. There could never be two violations of release reports. There could be one violation of release report and numerous supplemental violations of release reports. The individual can only go on at a preliminary hearing on the charge which forms the basis for the issuance of the warrant and those charges would be contained in the violation of release report as opposed to supplemental violation of release report. They can not go forward with charges in the supplementals because those were issued post-warrant. We're testing, so to speak, testing the warrant.

Petitioner claims that at the time he waived his right to a preliminary hearing he had only been served with Charges 1 through 5. Thus, he argues that because he was not accurately informed of the charges he was facing, his waiver of a preliminary hearing was not valid and he was improperly denied his right to a preliminary hearing (Reply Aff p 2). Petitioner does not contest Respondent's authority to bring supplemental charges and concedes that "[i]f petitioner had had a preliminary hearing and had probable cause then been found justifying his detention, respondent could then properly add supplemental charges prior to the final hearing" (Reply Br p 3). Had Petitioner had a preliminary hearing, there would be no waiver to analyze and Respondent could properly supplement charges prior to the final hearing (id.). Yet Petitioner argues that because he did not have notice of all of the charges against him when he waived his right to a preliminary hearing, it "invalidate[d] the waiver by rendering it one that was not knowing and intelligent" (id.). As a result, Petitioner requests that he be released and restored to parole. Alternatively, Petitioner requests that Charges 6 through 15 be dismissed for lack of notice (Writ p 5).

Respondent argues that after Petitioner waived his right to a preliminary hearing, he was not entitled to a new Notice of Violation or another chance at a preliminary hearing just because he was served with supplementary charges, because "[u]pon a finding of probable cause by any method, Respondent is entitled to bring supplemental charges at any time prior to the completion of the Final Hearing" (emphasis in original, citation omitted) (Resp Br p 7).

An analysis of these arguments must begin with the applicable provisions of both the Executive Law and the New York City Rules and Regulations. 9 NYCRR 8004.3(c) provides that

Executive Law § 259-i(3)(c)(iii) provides that

Executive Law § 259-i(3)(c)(i) provides that

Case law makes clear that a waiver of a preliminary hearing may be valid as to the charges of which Petitioner had knowledge but invalid as to the charges of which he was uninformed. See People ex rel Frazier, 42 Misc 3d 936 (Sup Ct, Bronx County 2013) (dismissing Frazier's petition to dismiss charges in Violation of Release Report because he had notice of those charges and executed knowing, intelligent and voluntary waiver of preliminary hearing as to those charges; however, sustaining petition as to charges contained in Supplemental Violation of Release Report of which Petitioner had no notice at the time of his waiver); People ex rel Crowley v. New York State Department of Corrections and Community Supervision, Index Number 340133-13, June 24, 2013, [*7]Villegas, J. (because Crowley was properly served with first 10 violations and validly waived preliminary hearing as to those, court declined to dismiss parole warrant and restore Crowley to parole; but court dismissed amended and/or additional charges of which Crowley had no notice when he executed the waiver); People ex rel Rivers v. Warden, George Motchan Detention Center, New York State Division of Parole, Index Number 250024-13, April 16, 2013, Alvarado J. (waiver of preliminary hearing was knowing, intelligent and voluntary with respect to charges of which Petitioner had notice, but charges in first and second Violation of Release Reports were so "materially different" that Petitioner did not have informative or timely notice of those charges, rendering waiver of preliminary hearing invalid as to added charges). It is undisputed that defendant had notice of Charges 1 through 5 and further that he knowingly, voluntarily and intelligently waived his right to a preliminary hearing with respect to those charges. Accordingly, the Article 78 proceeding with respect to Charges 1 through 5 is dismissed.

However, with respect to the question of whether Respondent's failure to provide Petitioner with notice of Charges 6 through 15 mandates dismissal of those charges, this Court respectfully declines to follow Frazier, Crowley and Rivers, supra. It is well established, as Petitioner concedes, that DOCCS may properly add or supplement charges after a preliminary hearing but before a final revocation hearing. People ex rel Kinzer v. Melvin Williams, as Superintendent of Gowanda Correctional Facility, et al., 256 AD2d 1240, 1240 (4th Dept 1998) (relator "was not deprived of his due process rights when, at the final parole revocation hearing, the Hearing Officer heard proof and revoked relator's parole based on two charges that did not result initially in a declaration of delinquency and were not the basis for the finding of probable cause at the preliminary parole revocation hearing."); see also, In the Matter of Keith Polidan v. Brion Travis, as Chair of the New York State Board of Parole, 8 AD3d 770, 770-71 (3d Dept 2004) ("[a] preliminary hearing is designed to determine if there is probable cause that a parole violation occurred, and the failure of an ALJ to address one of the charges does not preclude it from being raised at the final revocation hearing, particularly given that petitioner had notice that all charges could be raised at the final hearing [citations omitted]"). As the United States District Court for the Southern District of New York observed in Suce v. Justin A. Taylor, New York State Division of Parole et al., 572 FSupp2d 325, 337-38, fn. 6 (SDNY 2008):

Accordingly, DOCCS could properly add to or supplement the charges of which Petitioner had notice at the time of his knowing, intelligent and voluntary waiver of a preliminary hearing so long as DOCCS also gave him the requisite fourteen days' notice required by Executive Law § 259-i(3)(f)(iii) within the applicable 90 day period for the final revocation hearing. See People ex rel Young v. Warden, Otis Bantum Correctional Center and NYS Department of Corrections and Community Supervision, Index No. 250642-14 (Sup Ct, Bronx County September 26, 2014) (Kindler, J.) (filing of Supplemental Violation of Release Report more than fourteen days before final hearing did not render prior waiver of preliminary hearing invalid); In the Matter of the Application of Barry Frain v. Yelich, et al., 2012 WL 6738656, 2012 NY Slip Op 33051(U) *9 (Sup Ct, Franklin County 2012) (Feldstein, J.) (rejecting Frain's claim that because he had not been served with the second Supplementary Violation of Parole Report on the day that he waived his right to a preliminary hearing, his waiver did not encompass the charge contained in the second Supplementary Violation of Parole Report; when Frain was served by mail with second Supplementary Violation of Parole Report "he was not entitled to a preliminary hearing with respect to such charge since he had already waived his right to a preliminary hearing after being duly served with Parole Violation charges #1 through #5," and was entitled only to fourteen days' notice of the supplementary charge prior to the scheduled date of his final revocation hearing in accordance with Executive Law § 259-i[3][f][iii])^[FN4] ; see also, People ex rel Lewis v. Warden, George Motchen Detention Center, New York State Department of Corrections and Community Supervision, Index No. 250534-2014 (Sup Ct, Bronx County August 8, 2014) (Villegas, J.) (relying on both the language in Petitioner's signed waiver as well as case law, court concluded that Lewis's waiver of a preliminary hearing had the same effect as a probable cause finding at a preliminary hearing; holding that Petitioner's waiver extended to the supplemental charge because "[o]nce there is a finding of probable cause, additional charges may be included and addressed at the final hearing").

This Court finds additional support for its conclusion in People ex rel Howser v. New York State Board of Parole, et al., 57 NY2d 769 (1982). There, the Court of Appeals reversed the Appellate Division's order granting a writ of habeas corpus and instead remanded for a hearing. After a parole warrant was executed, Howser was provided with a notice of violation containing two charges and waived his right to a preliminary hearing. At his final revocation hearing, held on the 70th day following his waiver, Howser denied receiving notice of the date of the adjourned final hearing. Nor had he received a Violation of Release Report or a Supplemental Violation of Release Report which added a third charge. The hearing officer elicited a waiver of Petitioner's right to fourteen days' notice, as well as his right to service of the third charge and his right to counsel, but the Appellate Division vacated the parole revocation warrant and reinstated Howser to parole, [*9]holding that the record indicated that there was no clear, knowing, informed waiver by Howser of his right to adequate notice. People ex rel Howser v. New York State Division of Parole, et al., 86 AD2d 831, 832 (1st Dept 1982). The Court of Appeals reversed and remitted to Supreme Court for a hearing in accordance with the dissenting opinion of Justice Bloom, who reasoned that "[h]ad relator insisted on any or all of these rights, there was still sufficient time to effect full compliance within the ninety day period during which the final revocation hearing was required to be held." 86 AD2d at 832. Thus, the Court of Appeals decision in Howser, supra, supports the conclusion that after waiver of a preliminary hearing, the Petitioner is only entitled to fourteen days' notice of additional or supplementary charges prior to the final hearing, not a new preliminary hearing on supplemental charges or restoration to parole.

Accordingly, Petitioner's waiver of his right to a preliminary hearing was the equivalent of a probable cause determination after a hearing. It was knowing, intelligent and voluntary as to the five charges of which he had notice, and was not rendered invalid because he was served with additional charges at the arraignment on October 18, 2013. There was no due process violation, and Respondent was properly charged with fourteen days of delay for notice. Because the final hearing has not yet been held, Petitioner has received ample notice of all of the charges filed to date.

For all of these reasons, Petitioner's Article 78 proceeding is dismissed in its entirety.

This constitutes the decision and order of this Court.

Dated:Bronx, New York

October 21, 2014

_____________________________

Miriam R. Best

Acting Justice of the Supreme Court

State of New York

120 Broadway, 24 Floor

New York, New York 10271

Anna M. Hehenberger, AAG

The Legal Aid Society

Parole Revocation Defense Unit

199 Water Street, 5 Floor

New York, New York 10038

Izel Fortunato, Esq.

Kerry Elgarten, Esq.