Recitation of the papers considered in reviewing the underlying writ of habeas corpus include:

Respondent Department of Corrections and Community Supervision (DOCCS) detained petitioner Bruce Lorick for allegedly violating certain conditions of release during his period of community supervision. By writ of habeas corpus, petitioner seeks to challenge his detention and for further relief by canceling the associated delinquency. This court had previously ordered [*2]petitioner's release under CPLR 7009 (e) pending final disposition of this habeas proceeding. The petitioner asserts that DOCCS is collaterally estopped from proceeding on violation charges associated with conduct dismissed by a grand jury. For the reasons stated herein, the petition is GRANTED to the extent specified below.

Petitioner was released to community supervision but allegedly violated certain conditions of release on March 18, 2024. Those alleged violations include resisting arrest, failing to charge a GPS electronic monitor, and cutting off said GPS device. While resisting arrest on April 24, 2024, petitioner caused substantial injury to a parole officer. Because of this incident, petitioner was arraigned in criminal court and given a simultaneous recognizance hearing on April 25, 2024. After the recognizance hearing, the court remanded petitioner.

A preliminary revocation hearing was held on April 29, 2024 (see affirmation of respondent's counsel, exhibit D, preliminary hearing tr). At the hearing, the parole revocation specialist prosecuting the revocation case proceeded on charge 18, asserting that petitioner violated rule 8, "in that on or about 4/24/2024 at approximately 7:40 a.m. . . . [petitioner] resisted arrest by flailing their arms and refusing to be handcuffed" (id. at 7, line 25, at 28, lines 1-2). Petitioner's attorney objected to the hearing on this charge: "I would object to either moving forward on that charge without the chronological entries, or I would ask that the case be adjourned and charged to the State until I am provided with the entries regarding the date in question" (id. at 8, lines 19-21). The hearing officer overruled the objection and allowed the case to proceed.

To support their revocation case, the parole revocation specialist called upon petitioner's parole officer to testify. The parole officer testified that petitioner failed to report on April 23, 2024, although directed to do so (id. at 11). After petitioner failed to report on that date, the parole officer conducted a home visit on April 24, 2024 (id.). The parole officer, along with eight other parole officers, visited the residence, conducted a drug test on petitioner, and later learned that petitioner had removed his GPS device (id. at 13). A bureau chief informed that petitioner removed his GPS device, directed the parole officers to take petitioner into custody (id.). When the parole officers tried to arrest petitioner, he resisted their efforts: "He resisted arrest, flailing his arms, stiffening up his body, and pulling, yanking his arms . . . ." (id. at 14, line 9). During the struggle, one of the officers was injured (id. at 14). The parole officer said that he recorded this visit in case management system entries (id. at 16). At the end of the hearing, the hearing officer found a preponderance of the evidence to believe that petitioner violated a condition of release in an important respect (id. at 28).

As for the criminal matter, the Manhattan District Attorney's Office indicted petitioner on May 1, 2024, for resisting arrest and for assault in the second degree. Later, petitioner moved to dismiss the indictment, and the court granted the motion with leave to resubmit the charges to the grand jury. After the second presentation, the grand jury refused to indict, dismissing the charges.

In this petition, petitioner makes three arguments. First, the grand jury's dismissal of the charges collaterally estops DOCCS from proceeding with revocation charges related to the criminal matter. Second, DOCCS neglected to disclose discovery. Third, DOCCS failed to establish the charge by a preponderance of the evidence at the preliminary hearing.

First, DOCCS is prohibited from proceeding on revocation charges related to criminal conduct dismissed by a grand jury. Suppose criminal charges that formed the basis of petitioner's revocation charges were dismissed by acquittal. In that case, DOCCS is collaterally estopped [*3]from proceeding on those charges (see People ex rel. Dowdy v Smith, 48 NY2d 477, 479-480 [1979]). The application of collateral estoppel on revocation proceedings based on a related criminal action "depends on an analysis of the burdens of proof applicable in the different types of proceedings" (People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196, 202 [1983]). The burden of proof at a preliminary revocation hearing is "a preponderance of the evidence" (Executive Law § 259-i [3] [c] [iv]). The burden of proof for a grand jury to indict is "reasonable cause to believe that such person committed such offense" (CPL 190.65 [1] [b]). In comparing the two burdens, "the preponderance of the evidence standard is more stringent than the reasonable cause standard" (People v Torres, 5 AD3d 1097, 1098 [4th Dept 2004]). The People failed to meet the reasonable cause standard at the grand jury, a lesser standard than required for a preliminary revocation proceeding. Notably, the People withdrew their case from the grand jury and did not seek judicial permission to resubmit the case to another grand jury (see CPL 190.75 [3] [allowing resubmission of charges to a grand jury only once after a prior dismissal]). As a result, the grand jury dismissal prevents DOCCS from revoking petitioner's supervision based on criminal charges that the grand jury dismissed and for which the People did not seek judicial permission to represent.

With the revocation charges based on the criminal matter dismissed, petitioner has served beyond his maximum permissible sanction. Thus, petitioner is entitled to release.

Second, DOCCS failed to comply with their discovery obligations. A releasee in a revocation proceeding is entitled to certain discovery: "As far as practicable or feasible, any additional documents having been collected or prepared that are relevant to the charge shall be delivered to the alleged violator" (Executive Law § 259-i [3] [c] [iii]). To the extent that the statute provides for a right to discovery, that right is decidedly limited (see Matter of Milburn v New York State Div. of Parole, 173 AD2d 1016, 1017 [3d Dept 1991] ["The right of a criminal defendant to discovery of exculpatory material . . . has no application in an administrative proceeding to revoke parole" (internal citations omitted)]). However, where DOCCS can easily provide such additional documents and fails to provide sufficient justification for nondisclosure of those documents, DOCCS violates this statutory provision (see Executive Law § 259-i [3] [c] [iii]).

Here, the testifying parole officer mentioned chronological entries made in DOCCS's case management system, which describe the events that occurred on April 24, 2024, the date of the alleged incident. DOCCS gave petitioner only the odd-numbered pages of DOCCS's chronological entries, which amounts to at least 13 pages of undisclosed documentation. These documents were relevant to the violation charge presented at the preliminary hearing. Since petitioner lacked such documents, petitioner claims that he was unable to cross-examine the testifying parole officer adequately. Further, DOCCS has not alleged that such documents were not easily or feasibly deliverable to petitioner.

The Executive Law does not propose discovery sanctions. However, because "any shortcomings in the revocation hearing raise only a question of irregularity in the statutory procedures . . . A new hearing adequately protects relator's rights." (People ex rel. Martinez v New York State Bd. of Parole, 56 NY2d 588, 590 [1982] [ordering a new hearing where the previous hearing was held in absentia and there was no evidence of bad faith by the parole authority]). Because DOCCS did not abide by its discovery obligations, this court directs DOCCS to provide required disclosures to petitioner under to Executive Law § 259-i (3) (c) (iii). This court also directs that DOCCS provide petitioner a new preliminary revocation hearing [*4]within 10 days after the entry of this order (see Executive Law § 259-i [3] [c] [i] [A]).

In light of this determination, this court need not reach petitioner's remaining contentions.

Accordingly, it is ORDERED that DOCCS cannot proceed on violation charges against petitioner based on criminal charges dismissed by the grand jury; it is further

ORDERED that petitioner is released on warrant No. 852976 unless petitioner is subject to another warrant or commitment that is not predicated upon the alleged violation of parole; it is further

ORDERED that the securing order entered at the recognizance hearing on this warrant is superseded and shall no longer detain petitioner; it is further

ORDERED that DOCCS provide petitioner any additional documents that are relevant to the violation charges, including all relevant chronological entries, and it is further

ORDERED that the matter is remitted to DOCCS for a new preliminary revocation hearing not inconsistent with this decision within ten days after the entry of this order before a different hearing officer.

This decision constitutes the order of this court.