Habeas Corpus - When Remedy Available - Challenge to Detention Based on Department of Corrections and Community Supervision's Failure to Provide Prompt Final Revocation Hearing - No Administrative Remedies Available

Parole - Revocation - Failure to Provide Timely Final Hearing - Multiple Parole Violation Warrants Constituted Separate Events with Corresponding Hearing Timetables

The Legal Aid Society (Michelle McGrath of counsel) for petitioner.

Letitia James, Attorney General, New York City (Christopher J. Byrne of counsel), for Department of Corrections and Community Supervision, respondent.

Respondent Department of Corrections and Community Supervision (DOCCS) detained petitioner Joseph Weeks for allegedly violating certain conditions of release during his sentence of community supervision. By petitioning for a writ of habeas corpus, petitioner seeks to challenge his detention. This court had previously ordered petitioner's release under CPLR 7009 (e) pending final disposition of this habeas proceeding. Petitioner asserts that DOCCS denied him the right to a timely final revocation hearing. For the reasons stated herein, the petition is granted.

Petitioner was released to community supervision on June 9, 2021, but allegedly violated [*2]certain conditions of release on May 2, 2022. Those alleged violations include shoplifting, failing to discuss a change in residence with his parole officer, and absconding from supervision. For these violations, DOCCS initiated revocation proceedings against petitioner by parole warrant No. 840527 (the first warrant). Police officers arrested petitioner on various criminal charges on November 18, 2022, and detained him on the first warrant.

As part of the revocation proceedings, a preliminary hearing was held on November 25, 2022. The hearing officer found a preponderance of the evidence to believe that petitioner violated a condition of release in an important respect. At that time, a final hearing was scheduled for December 12, 2022. However, before that scheduled hearing, petitioner was released from custody by writ of habeas corpus issued on December 2, 2022. Although petitioner was released, petitioner failed to appear at the final hearing. As a result, the hearing officer adjourned the case to February 2, 2023 (petition ¶ 11).

On the scheduled final hearing date of February 2, 2023, petitioner did appear. As a result, petitioner's final hearing was adjourned to March 16, 2023 (id.). Neither party's papers provided this court with a reason for the adjournment.

The petitioner failed to appear on the scheduled final hearing date of March 16, 2023. As a result, petitioner's final hearing was adjourned to May 4, 2023 (id.).

DOCCS issued parole warrant No. 840748 (the second warrant) on April 6, 2023, and arrested petitioner on this warrant{**86 Misc 3d at 724} on May 23, 2023 (petition ¶ 12). DOCCS then adjourned petitioner's final hearing on the first warrant to May 30, 2023 (petition ¶ 21). By writ of habeas corpus issued on June 7, 2023, petitioner was released from custody under the second warrant, the warrant was lifted, and the associated charges were dismissed (id.). DOCCS then adjourned petitioner's final hearing to July 31, 2023 (affirmation of respondent's counsel ¶ 8).

Before July 31, 2023, DOCCS issued parole warrant No. 840785 (the third warrant) on June 29, 2023. Petitioner was arrested on July 13, 2023 (petition ¶ 22). DOCCS adjourned petitioner's final hearing to September 25, 2023 (affirmation of respondent's counsel ¶ 8). By writ of habeas corpus issued on August 10, 2023, petitioner was released from custody under the third warrant. The court lifted the warrant and dismissed the charges associated with it. DOCCS then adjourned petitioner's final hearing to February 15, 2024 (affirmation of respondent's counsel ¶ 8). This hearing date was adjourned several times to November 25, 2024, to allow for attorney preparation or because petitioner refused to appear (id.; petition ¶ 14).

Before the November 25, 2024 court date, DOCCS issued parole warrant No. 852530 (the fourth warrant) on August 25, 2023. This fourth warrant is also the cause of petitioner's incarceration and the subject of the instant petition. Petitioner was arrested on September 18, 2024, and remanded at a recognizance hearing held September 19, 2024 (affirmation of respondent's counsel ¶¶ 8-9). DOCCS held a preliminary hearing on the fourth warrant on September 23, 2024. By writ of habeas corpus issued on November 20, 2024, petitioner was released pursuant to CPLR 7009 (e) on the instant petition pending final disposition of the habeas proceeding.

On the scheduled final hearing date of November 25, 2024, petitioner's attorney sought an adjournment for additional time to prepare arguments regarding the timeliness of the final hearing. The final hearing was adjourned to February 27, 2025.

In this petition, petitioner asserts that DOCCS violated petitioner's right to a timely final revocation hearing. In opposition, DOCCS argues that petitioner has not exhausted administrative remedies and is, therefore, not entitled to habeas relief at this juncture. Further, DOCCS argues that petitioner's final hearing nevertheless remains timely.{**86 Misc 3d at 725}

Typically, a habeas petition must be dismissed for "failure to exhaust administrative remedies since the errors that petitioner claims were committed at the parole revocation hearing could have been remedied by means of an administrative appeal" (People ex rel. Charleston v New York State Div. of Parole, 280 AD2d 348, 348 [1st Dept 2001]). DOCCS, therefore, argues that petitioner Weeks should have brought an administrative appeal before bringing this action (see also People ex rel. Epps v Warden, Riker's Is. Correctional Facility, 46 AD3d 352, 352 [1st Dept 2007] ["It does not avail petitioner to argue that the alleged errors are of constitutional dimension"]).

However, as petitioner points out, administrative remedies are only available to petitioner after a violation charge has been sustained (see Executive Law § 259-i [4] [a] [providing administrative appeals from "all determinations made pursuant to this section" except for preliminary hearing determinations]; see also § 259-i [4-a] [a] [providing nonadministrative appeals to certain courts from nontechnical violation findings]). Petitioner is not appealing a final hearing determination nor a sustained violation finding. Instead, petitioner is challenging his detention based on DOCCS's failure to provide a prompt final revocation hearing. The current posture of petitioner's revocation case leaves him without any redress within the appeals processes outlined in the statute.

Although petitioner would be able to assert a due process violation through the administrative appeals process after the final hearing, petitioner may validly raise such claims in a habeas petition before such time (see People ex rel. Betancourt v Warden of Rikers Is., 149 AD2d 356, 358 [1st Dept 1989] [granting writ where petition alleged that "respondent had violated petitioner's statutory right to receive a final revocation hearing"]). In People ex rel. Betancourt, the petitioner filed the habeas petition before a final hearing was held. That decision does not mention whether the petitioner exhausted administrative remedies. Still, it seems unlikely that the petitioner could have done so, considering he filed a habeas petition before the final hearing was held. If DOCCS held the final hearing, petitioner would not be able to proceed by habeas petition but would instead be required to exhaust available remedies.

Because petitioner Weeks has no recourse to administrative appeals (under Executive Law § 259-i [4] [a]) or to nonadministrative appeals (according to Executive Law § 259-i [4-a] [a]), {**86 Misc 3d at 726}petitioner may appropriately challenge his detention through this habeas petition, especially where petitioner's claim, if meritorious, would entitle him to immediate release (see People ex rel. Joyce v New York State Div. of Parole, 249 AD2d 638, 638 [3d Dept 1998]). Thus, "[a] parolee is entitled to a prompt final parole revocation hearing, and the failure to provide said hearing may be raised in a petition for a writ of habeas corpus" (People v Bagby, 11 Misc 3d 882, 889 [Sup Ct, Westchester County 2006]).

The timeliness of a final hearing is measured by two tracks that depend on an individual's custody status (see Executive Law § 259-i [3] [f] [i] [A]-[B]). A detained individual must be afforded a final hearing "within thirty days of the finding by a preponderance of the evidence determination at the preliminary hearing" (Executive Law § 259-i [3] [f] [i] [A]). A released individual must be afforded a final hearing "within forty-five days of the issuance of the notice of violation or the order of release on recognizance" (Executive Law § 259-i [3] [f] [i] [B] [1]).

According to DOCCS's regulation, if a parole warrant was issued and the individual is released at a recognizance hearing, then "the final hearing shall be scheduled to occur within 45 days of issuance of the court's release order" (9 NYCRR 8005.17 [a] [2]). This part of the [*4]regulation comports with the statute.

The next part of DOCCS's regulation provides that if a subsequent court order releases the individual, "the final hearing may be scheduled or rescheduled to occur within 45 days of the court's conclusion upon such new consideration if the court again orders release" (id.). But suppose a subsequent court order detains the individual. In that case, the final hearing must be scheduled "within the later of 30 days of either the issuance of the court's order directing that the releasee be detained, or issuance of the determination following a preliminary hearing that there exists a preponderance of evidence" (id.). This provision allows a releasee, once at liberty but now detained, to take advantage of the 30-day final hearing track and conversely allows DOCCS 45 days to proceed to a final hearing where a detained releasee is subsequently released. The statute does provide for one timetable shift. However, an individual's return to custody by arrest does not "restart" the final hearing timeline.

{**86 Misc 3d at 727}DOCCS's interpretation of the statute undermines the statute's legislative purpose by creating moving targets that offer an endless hearing timeline, thereby perpetuating a need for ongoing legislation. The legislative intent behind the amendments to the statute was rooted in "shortening the timeframe for adjudicatory hearings" (Matter of People ex rel. Subramaniam v Annucci, 227 AD3d 26, 30 [1st Dept 2024]). To interpret the statute as DOCCS does "conflicts with the plain text of the statute and the spirit and purpose of the 2021 amendments to the statute, which were implemented to provide greater protections to releasees charged with parole violations" (Matter of People ex rel. Tobias v Martuscello, 227 AD3d 627, 628 [1st Dept 2024]).

That said, delays occasioned by petitioner are not charged to DOCCS (see Executive Law § 259-i [3] [f] [i] [C] ["However, if an alleged violator requests and receives any postponement of his or her revocation hearing, or consents to a postponed revocation proceeding initiated by the board, or if an alleged violator, by his actions otherwise precludes the prompt conduct of such proceedings, the time limit may be extended"]).

Here, petitioner has had four parole warrants issued.

The question is whether the warrant matters dovetail, or are viewed separately. Tobias established that a releasee had a statutory right to a subsequent preliminary hearing for "alleged violations committed after the releasee received a preliminary hearing in conjunction with prior violations that have not yet been presented at a final revocation hearing" (Tobias at 628). If a releasee is entitled to a preliminary hearing on additional violations to an earlier unresolved warrant, then the releasee is entitled to a final revocation hearing on those violations. Thus, just as the new warrant mandated a new timetable for preliminary hearings, the latest preliminary hearing determination triggers a new timetable for final parole revocation hearings. Based on Tobias' rationale, the warrants are separate and distinct events with corresponding timetables. Therefore, subsequent preliminary hearing determinations should be viewed on their own timetable. That said, upon Weeks' arrest on the fourth warrant, DOCCS only had three days remaining to proceed to a final revocation hearing on the{**86 Misc 3d at 728} first warrant. That three-day period expired on September 22, 2024.^[FN1]

DOCCS held the preliminary hearing on the first warrant on November 25, 2022. DOCCS conducted the preliminary hearing on the fourth warrant on September 23, 2024. Yet, a final hearing on either warrant has not taken place.^[FN2] Even accounting for periods of delay due to petitioner's failure to appear or from petitioner's consent adjournments, DOCCS still exceeded the relevant statutory periods.

From November 25, 2022, through December 12, 2022, DOCCS is charged with 17 days of delay for the final hearing on the first warrant. On November 25, 2022, a preliminary hearing was held during which the hearing officer found that a preponderance of the evidence supported the belief that petitioner had violated a condition of release in a material respect. DOCCS then adjourned petitioner's final hearing to December 12, 2022. The period from November 25, 2022, through December 12, 2022, thus constitutes chargeable time for the first warrant.

From May 23, 2023, through May 30, 2023, DOCCS is charged with seven days of delay for the final hearing on the first warrant. On May 23, 2023, petitioner was detained on the second warrant. DOCCS then adjourned petitioner's final hearing to May 30, 2023. The period from May 23, 2023, through May 30, 2023, thus constitutes chargeable time for the first warrant.

From July 13, 2023, through July 31, 2023, DOCCS is charged with 18 days of delay for the final hearing on the first warrant. On July 13, 2023, petitioner was detained on the third warrant. DOCCS then adjourned petitioner's final hearing to July 31, 2023. The period from July 13, 2023, through July 31, 2023, thus constitutes chargeable time for the first warrant.

From September 19, 2024, through November 25, 2024, DOCCS is charged with 63 days of delay for the final hearing{**86 Misc 3d at 729} on the first and fourth warrants. On September 19, 2024, petitioner was remanded at the recognizance hearing on the fourth warrant. DOCCS held a preliminary hearing on the fourth warrant on September 23, 2024, and adjourned the matter to November 25, 2024, the final hearing date on the first warrant. Counsel objected to the adjournment date as petitioner was detained. The period from September 19, 2024, through September 23, 2024, constitutes chargeable time on the first and fourth warrants, with DOCCS's time to proceed to a final hearing on the first warrant expiring on September 22, 2024. The period of September 23, 2024, to November 25, 2024, constitutes chargeable time for the fourth warrant as petitioner did not request or consent to the adjournment or that petitioner otherwise precluded conducting a hearing on any date between (Matter of Oquendo v Hammock, 155 AD2d 959, 960 [4th Dept 1989]).

Upon reviewing the relevant periods, DOCCS exceeded the allotted time allowed to have a final hearing on the first and fourth warrants.

Accordingly, the petition is granted, parole warrant No. 852530 is vacated, the associated delinquency is canceled, and petitioner is restored to supervision; it is further ordered that petitioner is released on parole warrant No. 852530 unless petitioner is subject to another warrant or commitment that is not predicated upon the alleged violation of [*5]parole; it is further ordered that the securing order entered at the recognizance hearing on this warrant is superseded and shall no longer detain the petitioner.