Parole - Judicial Review - Appeals from Nontechnical Violations - Executive Law § 259-i (4-a) Does Not Provide Right to Second-Tier Appeal to County Court after Unsuccessful Appeal of Parole Violation Determination in City Court

Julie Cianca, Public Defender, Rochester (Alexander Prieto of counsel), for petitioner.

Jason Golub, Deputy Commissioner, Albany (Karyn J. Yaffee of counsel), for respondent.

Petitioner releasee filed an affidavit of continued eligibility for poor person relief and assignment of counsel on appeal application{**86 Misc 3d at 769} pursuant to Criminal Procedure Law § 380.55 seeking to appeal from an Executive Law § 259-i (4-a) appeal decision rendered in Rochester City Court (Dixon, J.).

The parties were asked to brief and argue the legal issue of whether this court has jurisdiction to provide the relief requested (see generally Erie Blvd. Hydropower, LP v State of New York, 90 AD3d 1292, 1293 [3d Dept 2011] [a court may sua sponte examine subject matter jurisdiction]). Unlike Matter of Olivos v Quiroz (226 AD3d 1028, 1029 [2d Dept 2024]), cited by petitioner, here the facts are not in dispute. Petitioner had a parole hearing before an administrative law judge pursuant to Executive Law § 259-i. Petitioner then unsuccessfully appealed to Rochester City Court pursuant to Executive Law § 259-i (4-a). Petitioner now seeks to prepare another appeal before this court.

Petitioner contends that this court has appellate jurisdiction over this matter pursuant to Uniform City Court Act § 1702 (a) (1). Specifically, petitioner contends the appeal held before City Court pursuant to Executive Law § 259-i (4-a) (a) was akin to a trial de novo. Respondent Department of Corrections and Community Supervision (DOCCS) contends that petitioner exhausted his right to the 4-a appeal in City Court.

This court lacks jurisdiction over a second-tier appeal from a 4-a appeal and thus lacks the authority to continue the assignment for appeal and grant the relief sought.[*2]

The Less Is More: Community Supervision Revocation Reform Act was enacted on September 17, 2021, and became effective March 1, 2022 (see L 2021, ch 427, § 10; 2021 NY Senate Bill S1144A, 2021 NY Assembly Bill A5576A). The Less is More Act provided for a series of reforms to parole. Included in those reforms was the addition of Executive Law § 259-i (4-a), which created an expedited path for the appeal of parole violation determinations involving nontechnical violations. Nontechnical violations are defined as the commission of a new felony or misdemeanor offense (Executive Law § 259 [7]).

Before the addition of this provision, a petitioner's only avenue to challenge the outcome of a parole hearing was to appeal to the Board of Parole. Once that administrative appeal was exhausted, a petitioner could then file a CPLR article 78 petition in accord with CPLR 7804 (b). While this provision is still available, the Less is More Act added the option of an expedited judicial 4-a appeal for nontechnical violations.{**86 Misc 3d at 770}

The plain language of the statute provides for one direct appeal as of right when a petitioner opts for a 4-a appeal. The statute is silent as to a second-tier appeal:

"Notwithstanding the provisions of any other law, when in a violation proceeding brought pursuant to this section, any of the charges sustained by the hearing officer would constitute a misdemeanor or felony if such charge were or had been brought in a criminal court, the releasee may, in lieu of an administrative appeal to the board pursuant to subdivision four of this section, appeal such determination to the lowest level of the following courts serving the jurisdiction in which the hearing was held or in which any such sustained conduct was alleged to have occurred: city court, district court, county court or supreme court; provided, however, that if any such misdemeanor or felony charge was prosecuted in any city, district, county or supreme court, such appeal shall be filed in that court" (Executive Law § 259-i [4-a] [a]).

It is well-settled that in interpreting a statute, "[t]he primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature" (McKinney's Cons Laws of NY, Book 1, Statutes § 92 [a]; see e.g. People v Jones, 26 NY3d 730, 733 [2016]). "[S]ince the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (People v Pabon, 28 NY3d 147, 152 [2016] [internal quotation marks omitted]; see McKinney's Cons Laws of NY, Book 1, Statutes § 94). When the language is "clear and unambiguous, [as it is here,] it should be construed so as to give effect to the plain meaning of the words used" (Jones, 26 NY3d at 733 [internal quotation marks omitted]).

Nonetheless, petitioner asserts he has a right to counsel because he is now entitled to appeal before this court. Petitioner contends that because the 4-a appeal was held in City Court, Uniform City Court Act § 1702 (a) applies. This statute provides: "An appeal may be taken as of right . . . from any final or interlocutory judgment except one entered subsequent to an order of an appellate court which disposes of all the issues in the action." (Uniform City Ct Act § 1702 [a] [1] [emphasis added].) Here, however, City Court's 4-a determination is not a "judgment" (see generally CPLR 5011; CPL 1.20{**86 Misc 3d at 771} [15]); it is an appellate decision from an Executive Law appeal (see Statutes § 231 ["Every word to be given effect"]).

"The right to appeal depends upon express constitutional or statutory authorization" (Friedman v State of New York, 24 NY2d 528, 535 [1969]). Statutory authorization is a required prerequisite to an appeal (see generally Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.], 29 NY3d 231 [2017]). Here, the Legislature provided a mechanism for judicial appeal that was not previously available by permitting, for what appears to be the first time, a City Court judge to serve as an appellate judge. The Legislature, however, did not empower this court to hear a second-tier appeal and thus, County Court has no authority to grant petitioner's request for poor person relief and assignment of counsel for a second-tier 4-a appeal (compare County Law §§ 717, 722, with Executive Law § 259-i [4] [b]).

While the Executive Law instructs that 4-a appeals must follow the Criminal Procedure Law for rules involving the filing of a notice of appeal, a stay, and perfection of the appeal, 4-a appeals are not criminal appeals. Rather, these 4-a appeals are a creature of the Executive Law, which provides for only one judicial appeal of the parole board's determination. Moreover, the right to counsel in these parole matters is statutorily derived. The statute provides that "[c]ounsel shall be assigned to the individual, if unable to afford counsel, by the court before which the appeal is taken or is to be taken" (Executive Law § 259-i [4-a] [b]).

Petitioner's claim that a 4-a appeal held in City Court is a de novo hearing not an actual appeal is belied by the plain language of the statute. Executive Law § 259-i (4-a) (d) terms the proceedings an "appeal," and sets forth that "[o]n such appeal, the reviewing city, district, county or supreme court shall consider de novo the issues raised by the appellant." The distinction between a standard of review and the type of proceeding cannot be ignored. A de novo standard of review on appeal is not the same as a de novo hearing (see generally Matter of Walker v Annucci, 167 AD3d 1531 [4th Dept 2018]). Petitioner concedes the record on appeal before this court would be identical to the record reviewed by City Court making this a second-tier appeal, not an appellate review of a trial de novo judgment.

The plain language of Executive Law § 259-i (4-a) does not provide for second-tier appeals to County Court as a right (see{**86 Misc 3d at 772} Matter of Rogers v State of N.Y. Dept. of Corr. & Community Supervision, Sup Ct, Monroe County, Dec. 13, 2024, Randall, A.J., index No. SMZ 70306-23 [holding there is no statutory authority for a second 4-a appeal in Supreme Court]). Therefore, this court lacks jurisdiction to appoint counsel pursuant to Executive Law § 259-i (4-a) (b) and to grant the relief petitioner seeks.

Petitioner's request for continued eligibility for poor person relief and assignment of counsel on appeal is therefore denied.