City Court of Rochester, October 12, 2023

Julie Cianca, Public Defender, Rochester (David Juergens of counsel), for appellant.

New York State Department of Corrections and Community Supervision, Board of Parole, Albany (Heather Odom of counsel), for respondent.

Chevas Johnson (hereinafter the appellant) appeals from a decision, rendered on April 26, 2023, revoking his postrelease supervision on the basis that the charges sustained by the Administrative Law Judge (hereinafter ALJ) would have constituted{**81 Misc 3d at 798} a felony or misdemeanor if such charge were brought in a criminal court (Executive Law § 259-i [4-a]). After a hearing, the ALJ revoked the appellant's postrelease supervision and sustained charges one through six.[*2]

Charge one accused the appellant of possessing a loaded firearm outside his home or place of business, resulting in charges for criminal possession of a weapon in the second degree. Charge two accused the appellant of possessing a high-capacity magazine, resulting in charges for criminal possession of a weapon in the third degree. Charge three accused the appellant of possessing a handgun with a prior conviction, resulting in charges for criminal possession of a weapon in the third degree.

Charges four through six are technical violations, accusing the appellant of being out past curfew, possession of a weapon without written permission of his parole officer, and threatening behavior of himself or others by possessing a weapon, respectively.

The Board of Parole (hereinafter Board) did not object to this court's jurisdiction. The District Attorney's Office did not intervene in the proceedings.

The court is tasked with conducting a de novo review of the issues (Executive Law § 259-i [4-a] [d] [a]). An ALJ has the authority to sustain a violation of postrelease supervision only upon a showing that the charge is supported by "clear and convincing evidence" (Executive Law § 259-i [3] [f] [viii]).

Where criminal charges have been resolved favorably to a defendant the conduct underlying the criminal charge may not form the basis of a sustained postrelease supervision violation (Executive Law § 259-i [3] [f] [viii]). According to Executive Law § 259-i (3) (f) (viii):

"At the conclusion of the hearing the presiding officer may sustain any or all of the violation charges or may dismiss any or all violation charges. He or she may sustain a violation charge only if the charge is supported by clear and convincing evidence. Conduct that formed the basis of an arrest shall not form a basis of a sustained parole violation if a court has adjudicated the matter with an acquittal, adjournment in contemplation of dismissal, or violation." (Executive Law § 259-i [3] [f]{**81 Misc 3d at 799} [viii].)

According to the violation of release report defendant was charged with criminal possession of a weapon in the second degree and two counts of criminal possession of a weapon in the third degree. Prior to the commencement of the parole revocation hearing, these charges were dismissed by a grand jury. By definition, a grand jury

"is a body consisting of not less than sixteen nor more than twenty-three persons, impaneled by a superior court and constituting a part of such court, the functions of which are to hear and examine evidence concerning offenses and concerning misconduct, nonfeasance and neglect in public office, whether criminal or otherwise, and to take action with respect to such evidence as provided in section 190.60" (CPL 190.05 [emphasis added]).

As such, the findings of the grand jury constitute the findings of a part of superior court. Therefore, the underlying criminal conduct that formed the basis for the charges once pending before the grand jury cannot form the basis of a sustained parole violation.

A finding of dismissal made by a grand jury must be filed with the court by which it was impaneled (CPL 190.75 [1] [b]) and must be made when the grand jury "is not satisfied that there is reasonable cause to believe that such person committed such crime or any other offense," a standard that is lower than the "clear and convincing evidence" standard needed to [*3]sustain a parole violation (CPL 190.75 [1] [b]; Executive Law § 259-i [3] [f] [viii]). The case "may not again be submitted to a grand jury" unless the court authorizes the District Attorney to re-present (CPL 190.75 [3]). A court's authority to permit the District Attorney to re-present the case is statutorily restricted, as "[n]o-bills are entitled to great deference because they represent a determination that 'the evidence was not of sufficient credible worth to warrant a prosecution' " (People v Tomaino, 248 AD2d 944, 945 [4th Dept 1998], citing People v Dykes, 86 AD2d 191, 195 [2d Dept 1982]; CPL 190.75 [3]).

[1] Here, charges one, two, three, five, and six formed the basis of an arrest that resulted in a dismissal by the grand jury. As a result of the dismissal, the court finds the conduct alleged in those charges cannot form the basis of a sustained parole violation pursuant to Executive Law § 259-i (3) (f) (viii).{**81 Misc 3d at 800}

To meet their burden of establishing that the appellant had constructive possession over the gun, the evidence must establish that he had "dominion and control" over the gun by having a sufficient level of control over the area in which it was found (see People v Crowley, 188 AD3d 1665, 1665 [4th Dept 2020]). This standard does not require the Board to establish that the appellant had exclusive access to the area, but it does require evidence that goes beyond the appellant's mere presence in the area where the gun was found (Crowley, 188 AD3d at 1665).

Here, the testimony established that Christian Shafer from the St. Paul's Fire Department was dispatched by 911 to an apartment complex for a report of someone who had fallen and needed assistance. Upon arrival, he located the appellant in a common hallway that was connected to four or five different apartments. The appellant was not conscious. When he approached the appellant, he saw a gun and magazine in the "opposite" corner of the hallway. The magazine was approximately 10 to 15 feet away from the appellant. Mr. Shafer testified, "[w]ith the distance to the patient, I didn't necessarily feel it [sic] was immediately in danger" however "the confines of the apartment complex with the different apartments, we had no idea of knowing who it belonged to" so he waited for police to arrive before providing aid.

Officer Schwartz from the Irondequoit Police Department testified that upon arrival, she saw people inside at least one of the apartments while the appellant was laying in the common area. At some point, another resident left his apartment and began yelling at the police. Officer Schwartz measured the distance from the appellant to the location of the gun, testifying that it was a little over 13 feet. Police searched the appellant but did not find any bullets or weapons on his person, and he repeatedly denied having possession of the handgun. No DNA or fingerprints were recovered from the weapon.

[2] "A defendant's mere presence in the house where the weapon is found is insufficient to establish constructive possession" (People v King, 206 AD3d 1593, 1594-1595 [4th Dept 2022]). Here, the testimony does not establish that the appellant had constructive possession of a weapon or magazine and charges one, two, three, five, and six should not be sustained.{**81 Misc 3d at 801}

The appellant's parole officer testified that the appellant must abide by a curfew as a term of his release. As such, the appellant is required to remain inside his parole approved residence from 8 p.m. to 8 a.m. The testimony at the hearing established that on March 10, 2023, the appellant was located outside of his approved residence past curfew, which constitutes a violation of postrelease supervision in an important respect and was shown by clear and convincing evidence.[*4]

[3] However, "[r]eincarceration shall not be imposed for a sustained technical violation that involves: (a) violating curfew" (Executive Law § 259-i [3] [f] [xii] [2] [a]). Respondent concedes that under the facts and circumstances of this case a sustained curfew violation alone cannot result in the appellant's reincarceration. As a result it is hereby ordered that the decision sustaining violations on charges one, two, three, five, and six is reversed. It is further ordered that the decision sustaining a violation for charge four is affirmed, and it is further ordered that the appellant be restored to supervision.