I. PROCEDURAL BACKGROUND AND POSTURE

This special proceeding under CPLR Article 78 was brought by way of a verified Petition filed on behalf of the Petitioner (Doc. 1 with supporting exhibits at Doc. No. 3) pursuant to an Order to Show Cause granted on August 12, 2024 (Doc. No. 5). The relief sought is a stay of the final revocation hearing presently pending before the New York State Parole Board for events that occurred on or about April 1, 2024, wherein the Petitioner is alleged to have violated the terms and conditions of his release on parole dated March 23, 2022. The Respondents filed an Answer with accompanying exhibits on September 3, 2024. Doc. Nos. 9-10. The matter was returnable and promptly argued on September 12, 2024.

The principal relief sought by Petitioner is a temporary stay of the final revocation hearing that was ordered by the assigned administrative law judge (Respondent ALJ), over the objection of Petitioner's counsel, to have been conducted on August 21, 2024 (see Doc. No. 1, ¶¶ 17-18; Doc. No. 10, Tr. of 7/17/2024 proceedings at screen pg. 61, l. 12 through screen pg. 62, l. 20; and Doc. No. 10, Tr. of 7/24/2024 proceedings at screen pg. 70, l. 8-11 and screen pg. 72, l. 1-16), until Petitioner has the opportunity to exercise his constitutionally protected right to challenge the propriety of the search and seizure of the evidentiary materials (cocaine and drug paraphernalia) at a court sanctioned suppression hearing before it is allowed to be proffered at the revocation hearing.

Though Petitioner was charged with multiple penal law offenses stemming from his encounter with the Lancaster Police Department on April 1, 2024, the crux of the criminal offenses that form the basis for the parole violation charges filed against the Petitioner arise from a search of the Petitioner's vehicle that led to him being charged with felony cocaine possession. [*2]The alleged cocaine and related drug paraphernalia seized by the police for use in the criminal case also constitute the central items of evidentiary material that Respondent Commissioner Martuscello's representative (hereafter referred to as "Respondent" or "Respondent Parole Board") had produced to Petitioner's counsel as part of the disclosure performed as a prerequisite to the hearing. Thus, in sum it is undisputed that the evidentiary subject matter of the Petitioner's Fourth Amendment and New York State Constitution, Article 1, section 12, rights to seek suppression from any use against him of claimed "fruit of the poisonous tree" in the criminal proceeding and/or the Parole Board administrative proceeding with the Respondent, is the same.

Since the appearance by the parties before the ALJ on July 24, 2024, and after the date of the signing of the Order to Show Cause, the following has occurred: (i) Petitioner has been formally indicted on the charges related to the events of April 1, 2024, (ii) the remaining discovery previously sought and awaited by Petitioner's counsel (pre-indictment but sought contemporaneously in connection with the alleged parole violation proceeding) was duly produced by the District Attorney's Office post-indictment; (iii) the initial arraignment appearance on the indictment was conducted before Erie County Court Judge Susan M. Eagan on September 5, 2024; and (iv) Judge Eagan set a suppression hearing date of November 14, 2024. Additionally, on a wholly separate set of criminal charges against the Petitioner arising from a subsequent incident on August 8, 2024, the Respondent conducted a supplementary preliminary revocation proceeding on August 21, 2024 (Doc. No. 10, Tr. of 8/21/2024 proceedings at screen pgs. 127-157).

The parties have extensively briefed the issue presented on this application: Is the Petitioner entitled to the constitutional protection of a suppression hearing to preclude the use and introduction of evidence claimed to have been acquired in violation of his federal and state constitutional rights before the final revocation hearing of the Respondent is conducted?

A. The Constitutional Issue

The Bench and the bar are both deeply seeped in the reality that the mere recitation of pure black letter law seldom is enough to categorically dispose of most cases, and indeed, the conflicting argumentative interpretation of the law is what frames the litigation playing field in almost all cases (each side contending and arguing vigorously and in good-faith how and why the clearly stated law [as they view it] stands in favor of their respective client's position).

The present case is one that clears the high threshold of being decided on pure, plain and indisputably clear black letter law by the authoritative precedent established by the Court of Appeals. In the case of People ex rel. Piccarillo v. New York State Board of Parole, 48 NY 76 (1979), the Court had the exact issue before it and Judge Jasen's ruling was explicit in its dispositive content and context:

"In sum, our decision today holding that the exclusionary rule proscribes the use of illegally seized evidence at a parole revocation hearing is predicated both upon the recognition that a parolee's right to be free from unreasonable searches and seizures, guaranteed by both Federal and State Constitutions, remains inviolate and upon the well-established policy in this State prohibiting the use of illegally seized evidence at an administrative proceeding when such [*3]evidence is determined by a court to be unavailable in a criminal action. To draw a distinction between criminal actions and parole revocation hearings when applying the exclusionary rule would, in our opinion, serve only to undermine the effectiveness of the rule as a deterrent."

Moreover, and in precise distinction to some of the persuasive legal argument and authority cited by Respondents' counsel that certain recent cases, including one from the Court of Appeals (see Boyd v. Constantine, 81 NY2d 189 [1993]; and Matter of Brooks v. New York State DOCCS, 218 AD3d 1096 [3rd Dept. 2023]), have pruned the holding in Piccarillo, but the Piccarillo decision makes explicit reference to its unequivocal application to Parole Board hearings because of their fundamental impact on the liberty and right of freedom that is at stake, putting it plainly as follows:

"Although parole revocation hearings are classified as administrative proceedings, courts must, nonetheless, remain sensitive to the serious, if not irreparable, consequences which may befall a parolee if the charges of misconduct are sustained by the Board of Parole. Indisputably, "[w]hen all the legal niceties are laid aside a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned. It involves a deprivation of liberty just as much as did the original criminal action". (People ex rel. Combs v La Vallee, 29 AD2d 128, 131, app dsmd 22 NY2d 857.)" . . . "Respondents would now have this court carve from this rule prohibiting the introduction of illegally seized evidence at an administrative proceeding an exception when the target of the illegal activity of the police officers is a parolee and the administrative proceeding involved is a parole revocation hearing. This, we decline to do."

Id. at 80-81.

The above-quoted text and the strikingly instructive comments at Fn. 2 of Piccarillo distinguish it from the other types of administrative proceedings (employment based disciplinary hearings) which Respondents cite and advocate for distinction. It simply cannot be done in this case.

B. The Article 78 Jurisdictional Issue

Respondents make a predicate argument that the Court is being asked by Petitioner to intervene over statutory rights of an administrative tribunal by way of a writ of prohibition. "Two threshold questions in prohibition are: (1) whether the body or officer was acting in a judicial or quasi-judicial capacity, and (2) whether the error was of a jurisdictional nature. As to the first of these issues, it is well settled that an officer exercising legislative, executive or administrative functions is not subject to prohibition. See, e.g., McGraw v. Shapiro, 1977, 56 AD2d 624, 391 N.Y.S.2d 681 (2d Dep't) (prohibition does not lie to enjoin petitioner's civil service employment transfer). The remedy of prohibition, therefore, is usually only available to restrain the conduct of judges and similar adjudicatory officials."

McKinney's Practice Commentaries, C7801:4 (Vincent C. Alexander).

The first prong is clearly met here. The proceeding before Respondent ALJ Heary is a [*4]quasi-judicial proceeding. Piccarillo, supra at 80-81. The thornier question is whether ALJ Heary's administrative order on July 24, 2024, to conduct the final revocation hearing based on the April 1, 2024, violation charges while the suppression issue arising from those charges was still unsettled because no indictment had yet been issued (and the time to do so had not yet expired) was a jurisdictional act (thus subject to prohibition) or merely an error of substantive or procedural law. In the case of Rush v. Mordue, 68 NY2d 348, 354 (1986), the Court of Appeals thoroughly examined the jurisdiction versus the "mere" substantive/procedural error of law and put it this way:

"Even in those rare circumstances where an arrogation of power would justify burdening the judicial process with collateral intervention and summary correction, the writ of prohibition nonetheless does not issue as of right, but only in the sound discretion of the court (internal citations omitted) . . . In exercising that discretion, a court must weigh a number of factors: the gravity of the harm caused by the act sought to be performed by the official; whether the harm can be adequately corrected on appeal or by recourse to ordinary proceedings at law or in equity; and whether prohibition would furnish "a more complete and efficacious remedy * * * even though other methods of redress are technically available" (Matter of Dondi v. Jones, supra, 40 NY2d at p. 14, 386 N.Y.S.2d 4, 351 N.E.2d 650; La Rocca v. Lane, supra, 37 NY2d at pp. 579—580, 376 N.Y.S.2d 93, 338 N.E.2d 606; Matter of State of New York v. King, supra, 36 NY2d at p. 62, 364 N.Y.S.2d 879, 324 N.E.2d 351; Matter of Lee v. County Ct., supra, 27 NY2d at p. 437, 318 N.Y.S.2d 705, 267 N.E.2d 452; Matter of Culver Contr. Corp. v. Humphrey, supra, 268 NY at p. 40, 196 N.E. 627)."

The Court continued as follows: " Moreover, the fact that the harm sought to be redressed implicates a constitutional right, does not necessarily command availability of the writ, for not all constitutional claims are cognizable by way of prohibition (see, e.g., Matter of Blake v. Hogan, 25 NY2d 747, 303 N.Y.S.2d 505, 250 N.E.2d 568 [prohibition does not lie where claim is denial of right to speedy trial] ). Prohibition may lie, however, where the claim is substantial, implicates a fundamental constitutional right, and where the harm caused by the arrogation of power could not be adequately redressed through the ordinary channels of appeal. (La Rocca v. Lane, supra, 37 NY2d at pp. 579—581, 376 N.Y.S.2d 93, 338 N.E.2d 606.)." Id.

Inescapably, the determination of this issue goes back to Judge Jasen's unanimous Opinion in Piccarillo. There is no question that Piccarillo conclusively establishes that federal and state constitutional prohibitions against unreasonable search and seizure are intended to protect a "substantial" and "fundamental" right which is applicable to and binding upon the Respondent Parole Board in final revocation proceedings, and it appears that the subject "procedural" order made on July 24, 2024, to go forward with the hearing implicates that right with no other "redress through the ordinary channels of appeal" being available.

This proceeding, therefore, is jurisdictionally sound relative to the "final" revocation proceeding relating to the indicted charges stemming from the events of April 1, 2024. The Court correspondingly wants to make it clear that this Decision and Order is founded solely upon those charges and NOT binding on the Respondent Parole Board with respect to any other events, conduct or other circumstances allegedly chargeable to the Petitioner that may give rise to probable cause and/or subsequent revocation proceedings for violations that may be separately filed and fully prosecuted against the Petitioner. Nothing else was before the Court at the time the Order to Show Cause was executed and neither it nor this Decision and Order are applicable [*5]to anything outside the charges arising from the events of April 1, 2024.

In furtherance of the foregoing, it is hereby

ORDERED, that the Petitioner's application for a temporary stay of the Respondent's final revocation hearing that entails the potential use of certain evidence in support of the violation charges which form the basis for a Notice of Violation dated May 15, 2024 (to wit, illegal possession of cocaine and drug paraphernalia on or about April 1, 2024) and which evidence is currently represented by Petitioner to be the subject of an upcoming suppression motion that is scheduled to be made and heard at a suppression hearing on the search and seizure issues relating to the aforesaid illegal drugs and paraphernalia, presently scheduled to be heard and conducted on November 14, 2024 in Erie County Court (J. Eagan), is GRANTED; and it is further

ORDERED, that Petitioner's counsel shall serve a copy of his above-referenced suppression motion papers upon the Respondents contemporaneously with their filing in the criminal court proceeding presently pending before the Hon. Susan M. Eagan, J.C.C.; and it is further

ORDERED, that no other acts, events, or circumstances giving rise to any other alleged violation charges and/or proceedings involving the Petitioner that are now or hereafter pending before the Respondent Parole Board are affected by this Order.