Supreme Court, Dutchess County, July 27, 2023

Thomas N.N. Angell, Public Defender, Poughkeepsie (Lauren A. Jaeb of counsel), for relator.

Letitia James, Attorney General, Poughkeepsie (Heather R. Rubinstein of counsel), for respondents.

In this habeas corpus proceeding, petitioner seeks the release of Mr. Higgs from custody of the Sheriff of Dutchess County.

Mr. Higgs is being held on a warrant alleging a parole violation that arose from criminal charges that were brought against him in Virginia and his conviction of same on two of them under Virginia law: assault and reckless driving.

In short, the petitioner alleges that those convictions are legally insufficient to serve as a basis of a violation of parole that calls for a return to incarceration, and therefore, his retention in the jail at the current time is unlawful.

Specifically, the petitioner alleges that the charges only equate to technical violations under New York law which are not sufficient to allow a return to custody under the recently enacted Less is More Act.

"The Less is More Act was enacted on September 17, 2021, effective March 1, 2022 (see L 2021, ch 427, § 10). The act instructed that 'within [10] months of [it] becoming law [DOCCS] in consultation with the [B]oard of [P]arole shall identify all individuals incarcerated for a sustained violation of community supervision and recalculate such individual's time assessment in accordance with this act' (L 2021, ch 427, § 10). In [*2]calculating a violator's time assessment pursuant to the Less is More Act, DOCCS must initially determine whether that person committed a non-technical violation or a{**81 Misc 3d at 319} technical violation (see Executive Law §§ 259 [6], [7]; 259-i [3] [f] [xi], [xii]). A non-technical violation is defined as '(a) the commission of a new felony or misdemeanor offense; or (b) conduct by a releasee who is serving a sentence for an offense defined in article 130 of the penal law or section 255.26 or 255.27 of such law, and such conduct violated a specific condition reasonably related to such offense and efforts to protect the public from the commission of a repeat of such offense' (Executive Law § 259 [7]). A technical violation is defined as 'any conduct that violates a condition of community supervision in an important respect, other than the commission of a new felony or misdemeanor offense under the penal law' (Executive Law § 259 [6]). In accordance with the act, for non-technical violations, DOCCS may 'direct the violator's reincarceration up to the balance of the remaining period of post[ ]release supervision, not to exceed five years; provided, however, that a defendant serving a term of post[ ]release supervision for a conviction of a felony sex offense defined in [Penal Law § 70.80] may be subject to a further period of imprisonment up to the balance of the remaining period of post[ ]release supervision' (Executive Law § 259-i [3] [f] [xii]). For technical violations, reincarceration may generally not be imposed, however violators may be reincarcerated for up to 30 days for certain technical violations, depending on the violation and how many previous violations had occurred (see Executive Law § 259-i [3] [f] [xi], [xii])." (People ex rel. Marrero v Stanford, 215 AD3d 1046, 1048-1049 [3d Dept 2023].)

The first part of the analysis, therefore, is what is the appropriate standard for determining whether the violations are technical or non-technical.

Under Executive Law § 259 appear the following definitions:

"6. 'Technical violation' means any conduct that violates a condition of community supervision in an important respect, other than the commission of a new felony or misdemeanor offense under the penal law.

"7. 'Non-technical violation' means: (a) the commission of a new felony or misdemeanor offense; or (b) conduct by a releasee who is serving a sentence for{**81 Misc 3d at 320} an offense defined in article 130 of the penal law or section 255.26 or 255.27 of such law, and such conduct violated a specific condition reasonably related to such offense and efforts to protect the public from the commission of a repeat of such offense" (emphasis added).

A reading of those two subdivisions together can only lead to the conclusion that the standard for a non-technical violation must be a felony or misdemeanor under the New York State Penal Law.

Under the regulations recently promulgated by the Division of Parole, however, the standard for a non-technical violation is as follows:

"(b) A case shall be considered a non-technical violation case where either:

"(1) at least one violation charge alleges the commission of a felony or misdemeanor offense in and pursuant to the laws of any jurisdiction; or

"(2) the subject releasee who is alleged to have violated one or more conditions of release is currently serving a sentence for an offense defined in article 130 of the penal law or section 255.26 or 255.27 of such law." (9 NYCRR 8004.8 [emphasis added].)

Paragraph (2) is not applicable to this matter.

When a statute enacted by the legislature is in conflict with an agency-promulgated [*3]regulation, that analysis is clear:

"[F]undamental principles of statutory interpretation instruct us that where there is a conflict between a statute and an administrative rule or regulation promulgated pursuant to that statute, the wording and the meaning of the statute prevails (see generally Matter of Weil, Gotshal & Manges v O'Cleireacain, 83 NY2d 591, 596 [1994] ['Since we find the regulation at issue in clear conflict with the conceded legislative intent, we need not reach the question of deference']; Matter of Gross v New York City Alcoholic Beverage Control Bd., 7 NY2d 531, 540 [1960] ['the Authority is without power to adopt a scheme of its own to deal with applications for licenses and employ it as a substitute for that provided by the Legislature'])." (New York City Campaign Fin. Bd. v Ortiz, 38 AD3d 75, 84-85 [1st Dept 2006].){**81 Misc 3d at 321}

Thus, the question becomes whether the convictions in the State of Virginia would constitute a misdemeanor or felony under New York's Penal Law.

As for reckless driving, under New York law, reckless driving is a misdemeanor appearing in the Vehicle and Traffic Law. Thus, it cannot be a non-technical violation.

Also, the elements of Virginia's statute differ from New York's reckless driving statute:

"Reckless driving shall mean driving or using any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway. Reckless driving is prohibited. Every person violating this provision shall be guilty of a misdemeanor." (Vehicle and Traffic Law § 1212.)

Under Virginia law, reckless driving is defined as:

"§ 46.2-852. Reckless driving; general rule[:] Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving" (Va Code Ann § 46.2-852 [emphasis added]).^[FN*]

As far as the charge of assault and battery of which Mr. Higgs was convicted in Virginia, the crime is referenced in the Virginia statutes as follows: "A. Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor." (Va Code Ann § 18.2-57.)

The term "assault and battery" is defined under Virginia common law:

"Because, like other Virginia statutes involving assault and assault and battery, Code § 18.2-57.2 does not define 'assault and battery,' we assume the General Assembly intended to incorporate the common law definition. Carter v. Commonwealth, 269 Va.{**81 Misc 3d at 322} 44, 46, 606 S.E.2d 839 (2005).

"At common law, '[a] battery is the least touching of another, willfully or in anger, including touching done in the spirit of rudeness or insult.' Edwards v. Commonwealth, [*4]65 Va.App. 655, 664, 779 S.E.2d 858 (2015) (citing Hinkel v. Commonwealth, 137 Va. 791, 794, 119 S.E. 53 (1923) ); see also Adams v. Commonwealth, 33 Va.App. 463, 468, 534 S.E.2d 347 (2000) ('Whether a touching is a battery depends on the intent of the actor, not on the force applied.')." (Marshall v Commonwealth, 69 Va App 648, 655, 822 SE2d 389, 393 [2019].)

The misdemeanor of assault in the third degree under New York's Penal Law is defined as:

"A person is guilty of assault in the third degree when:

"1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or

"2. He recklessly causes physical injury to another person; or

"3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument." (Penal Law § 120.00.)

In order for a person to be guilty of assault under New York's Penal Law, therefore, there is a required element of physical injury which is not required under Virginia law. (An offensive touching is more akin to harassment in the second degree—Penal Law § 240.26.) Accordingly, the crime of assault and battery under Virginia law cannot be considered the equivalent of New York's Penal Law misdemeanor assault statute.

Because at least two of the four charges against Mr. Higgs are technical violations, he cannot be reincarcerated.

"(b) With respect to those violations as set forth in subdivision (a) of this section, the case shall not be considered a technical violation case where reincarceration may be imposed unless there are at least three such violations charged within the current case, or at least one such charge in the current case which may be combined with such qualifying sustained prior violations on the instant term(s) as to reach a threshold of three sustained such violations should the current qualifying charge also be{**81 Misc 3d at 323} sustained. A qualifying prior violation means a violation set forth in subdivision (a) of this section." (9 NYCRR 8004.7.)

Because Mr. Higgs is being held on violations of parole charges that cannot result in further incarceration, his further incarceration is unlawful.

Accordingly, it is hereby ordered that the writ of habeas corpus is sustained, and it is further ordered that the Sheriff of Dutchess County is hereby directed to release Tyrone Higgs, forthwith upon service of this order.