Parole - Revocation - Interstate Compact for Adult Offender Supervision - Out-of-State Parolee Supervised in New York Entitled to Recognizance Hearing

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

Letitia James, Attorney General, New York City (Owen M. Crowley of counsel), for Department of Corrections and Community Supervision, respondent.

Petitioner Rakeem Holiday seeks a writ of habeas corpus to obtain release from the custody of respondent Department of Corrections and Community Supervision (DOCCS). This court had previously ordered petitioner's release under CPLR 7009{**86 Misc 3d at 609} (e). The petition asserts that DOCCS denied petitioner a recognizance hearing and a timely preliminary hearing. For the reasons stated herein, the petition is granted.

Petitioner, convicted in New Jersey of robbery in the second degree, was sentenced to 7 to 13 years in prison (affirmation of respondent's counsel, exhibit B, ICAOS transfer request). After serving a portion of his sentence, petitioner was eligible for release to community [*2]supervision and sought to transfer supervision from New Jersey to New York in January 2023 (affirmation of respondent's counsel, exhibit B, ICAOS offender's application for interstate compact transfer, signed Jan. 31, 2023). Pursuant to the Interstate Compact for Adult Offender Supervision (ICAOS Compact), petitioner was allowed to transfer supervision to New York effective June 25, 2023 (affirmation of respondent's counsel, exhibit B, ICAOS transfer request, dated May 15, 2023).

However, petitioner allegedly violated certain conditions of his release as of August 31, 2024 (affirmation of respondent's counsel, exhibit A, violation of release rep, dated Sept. 5, 2024). His charges included violations of orders of protection (id.). DOCCS issued three supplementary violations of release reports to complement the initial report (affirmation of respondent's counsel, exhibit A, supp violation of release reps). The subsequent reports recorded additional arrests for violating the orders of protection against the same complainants (id.). The petitioner had 47 outstanding charges at the time of his arrest on parole warrant No. 853826 (affirmation of respondent's counsel, exhibit C, parole chrono rep).

As part of the parole revocation proceedings, DOCCS scheduled petitioner's preliminary hearing appearance for February 10, 2025 (amended petition). At this appearance, the parole revocation specialist requested an adjournment to February 13, 2025, to which petitioner's counsel objected citing that February 10, 2025, was the outside date for the hearing (id.). The preliminary hearing officer adjourned the hearing to February 13, 2025 (id.).

In this habeas petition, petitioner seeks relief from unlawful detention when he was denied a recognizance hearing following the execution of a parole warrant. New York's Executive Law requires DOCCS to provide a releasee with a recognizance hearing upon executing a parole warrant to determine whether the releasee will remain detained pending the outcome of the revocation proceedings. After a releasee has been taken into{**86 Misc 3d at 610} custody under a parole warrant for alleged violations of conditions of release, that releasee must be given "a recognizance hearing within twenty-four hours of the execution of the [parole] warrant" (Executive Law § 259-i [3] [a] [iv]). Although this provision ostensibly applies to supervised individuals in New York, DOCCS does not believe that this provision applies to out-of-state releasees supervised in New York, such as this petitioner.

Petitioner relocated from New Jersey to New York under the ICAOS Compact. New Jersey and New York have adopted the interstate compact through statute (NJ Stat Ann § 2A:168-26; Executive Law §§ 259-m, 259-mm). New York entered the interstate compact by enacting Executive Law § 259-m. This section of the Executive Law is known as "the uniform act for out-of-state parolee supervision" (Executive Law § 259-m [4]). Under the interstate compact, as enacted through the uniform act for out-of-state parolee supervision, a supervised individual convicted in one state (the sending state) may relocate and reside in another state (the receiving state) while still under the supervision of the sending state (Executive Law § 259-m [1] [1]). Further, the receiving state must "assume the duties of visitation of and supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees" (Executive Law § 259-m [1] [2]). From this, petitioner argues that under the interstate compact, DOCCS must supervise individuals with out-of-state convictions under the same standards as those supervised within New York.

Because petitioner is undergoing revocation proceedings, DOCCS contends that petitioner is no longer under supervision and thus not subject to New York's procedures for [*3]revocation proceedings. DOCCS maintains that finding otherwise grants the out-of-state parolee a "new right" inapplicable to ICAOS Compact parolees (affirmation of respondent's counsel ¶ 12).

At a minimum, an out-of-state releasee supervised in New York is subject to the same initial revocation procedures as a non-ICAOS Compact supervised individual in New York. The portion of the Executive Law describing revocation proceedings begins with a brief categorization of various releasees subject to that law: "If the parole officer having charge of a presumptively released, paroled or conditionally released person or a{**86 Misc 3d at 611} person released to post-release supervision or a person received under the uniform act for out-of-state parolee supervision shall have probable cause to believe that such person has committed a technical violation . . . ." (Executive Law § 259-i [3] [a] [i] [footnote omitted] [emphasis added].) This provision prescribes issuing a notice of violation for alleged technical violators and describes when a parole warrant may be appropriate (id.). Later sentences in the same statutory paragraph refer to people under community supervision: "If the parole officer having charge of a person under community supervision shall have probable cause to believe that such person has committed a non-technical violation . . . ." (Id.) Although out-of-state parolees are not explicitly identified in this later sentence, their inclusion should be understood to apply in subsequent references to releasees or other persons under community supervision (see Levine v Bornstein, 4 NY2d 241, 244 [1958] ["It is an elementary rule of interpretation that all parts of an act are to be read and construed together to determine the legislative intent, and that all should be harmonized with one another"]). The statutory context for the relevant revocation provisions makes clear that out-of-state parolees, as well as other releasees such as those presumptively released, paroled, conditionally released, or on postrelease supervision, are all subject to provisions related to notices of violation, warrants, and recognizance hearings as well.

Indeed, DOCCS's own regulations identify releasees generally as including out-of-state parolees supervised in New York, such as petitioner: "Releasee means a person released into the community on presumptive release, parole, conditional release, post release supervision or medical parole or received under the Uniform Act for out-of-state parolee supervision" (9 NYCRR 8000.2 [f]). Thus, DOCCS contemplated and promulgated regulations providing that releasees, including out-of-state parolees supervised in New York, would receive recognizance hearings (see 9 NYCRR 8004.9 [a] ["Following execution of a parole warrant, for any releasee remaining in custody pursuant to such warrant, a recognizance hearing will be held"]). The fact that the lawmakers did not continually refer to the uniform act for out-of-state parolee supervision within the Executive Law does not imply its inapplicability where the statutory and regulatory context makes clear the lawmakers' intention to set out revocation proceedings generally for all releasees (see Matter of Schmidt v Wolf Contr. Co., Inc., 269 App Div 201,{**86 Misc 3d at 612} 203 [3d Dept 1945] [holding that "words may be modified or altered so as to obviate all inconsistency with such intention" if statutory intent can be disclosed]).

DOCCS argues that the uniform act is mentioned in only two places and thus applies to only those limited provisions. The broader legislative context for revocation proceedings and DOCCS's own regulations related to those proceedings weigh against such a restrictive reading of the Executive Law.

Aside from the statutory argument, DOCCS also argues that specific procedural restrictions on the retaking of ICAOS Compact supervised releasees preclude petitioner's right to a recognizance hearing. Continuing, DOCCS argues that an ICAOS Compact supervised releasee [*4]undergoing either revocation or ICAOS Compact retaking procedures cannot be released to the community but must instead be detained pending retaking proceedings (citing Interstate Commission for Adult Offender Supervision [ICAOS] Rules rule 5.111 [eff Nov. 1, 2024] ["A supervised individual against whom retaking procedures have been instituted by a sending or receiving state shall not be admitted to bail or other release conditions in any state"]). But neither assertion precludes petitioner's release.

According to DOCCS, this rule supersedes any inconsistent rules of the member states bound by the interstate compact. In stating as much, DOCCS argues that the member states provide their own supervision standards while the interstate compact governs revocation proceedings on an entirely separate and uniform procedure. However, the interstate compact is not so rigid as to supersede state revocation procedures; instead, the interstate compact provides a minimum threshold of due process that local procedures may supplement (see Interstate Commission for Adult Offender Supervision, ICAOS Bench Book for Judges and Court Personnel § 4.7.3.2.1 [15th ed, 2024 update] ["Rule 5.108(d) defines the supervised individual's basic rights for a probable cause hearing. However, each state may have procedural variations"]). The division of supervision and revocation that DOCCS seeks to read into the compact does not lead to the conclusion that DOCCS abandoned revocation procedures for out-of-state parolees supervised in New York.

If the sending state initiates retaking procedures against petitioner, then petitioner could not be admitted to bail or otherwise released (ICAOS Rules rule 5.111). Within the meaning of the interstate compact, retaking refers to "the act of a {**86 Misc 3d at 613}sending state physically removing or causing to have a supervised individual removed, from a receiving state" (ICAOS Rules rule 1.101). There are various means of discretionary or mandatory retaking. The sending state has nearly sole discretion to retake a supervised individual (see ICAOS Rules rule 5.101 [a]). The receiving state may inform the sending state of an individual's behavior requiring retaking, thereby initiating the process (see ICAOS Rules rule 4.109 [describing how a receiving state may send a violation report to the sending state]). But petitioner has not been retaken by New Jersey and thus continues to be within New York's supervision through DOCCS.

As petitioner continues to be a releasee within the meaning of the Executive Law, petitioner remains entitled to the revocation procedures outlined therein that are not inconsistent with the interstate compact or uniform act for out-of-state parolee supervision. Thus, petitioner was entitled to a recognizance hearing within 24 hours of the execution of the parole warrant (Executive Law § 259-i [3] [a] [iv]). Further, because DOCCS remanded petitioner, he was entitled to a preliminary hearing within five days of either the execution of the warrant or the issuance of a securing order at the recognizance hearing (Executive Law § 259-i [3] [c] [i] [B]). If the recognizance hearing was late, then those five days are counted from the date of warrant execution (Matter of People ex rel. Subramaniam v Annucci, 227 AD3d 26, 30 [1st Dept 2024]). Here, DOCCS executed the warrant on February 4, 2025. Thus, DOCCS should have held the recognizance hearing on February 5, 2025 (see Executive Law § 259-i [3] [a] [iv]). Regardless of the lack of a recognizance hearing, as petitioner was in DOCCS's custody, the preliminary hearing should have been held on February 10, 2025, because February 9, 2025, fell on a Sunday.^[FN*]

{**86 Misc 3d at 614}However, though DOCCS scheduled the preliminary hearing for February 10, 2025, they requested an adjournment to February 13, 2025.

Petitioner, an out-of-state parolee supervised in New York, is entitled to supervision consistent with other similarly situated individuals sentenced in the receiving state, including "the use of incentives, corrective actions, graduated responses, and other supervision techniques" (ICAOS Rules rule 4.101), and was entitled to a recognizance hearing.

Nor does DOCCS explain the adjournment of the preliminary hearing from February 10, 2025, to February 13, 2025. When adjourning or rescheduling the hearing, DOCCS must "act energetically and scrupulously . . . to insure that the hearing not be delayed for more than the time reasonably necessary" (People ex rel. Burley v Warden, N.Y. City House of Detention at Riker's Is., 70 AD2d 518, 519 [1st Dept 1979]). Although three days is not a lengthy period to adjourn a preliminary hearing, nothing in the record satisfactorily explains the efforts to avoid further delay in affording petitioner a timely preliminary hearing.

Accordingly, the petition is granted, parole warrant No. 853826 is vacated, the associated delinquency is canceled, and petitioner is restored to supervision.