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

Petitioner Brandon Rountree seeks a writ of habeas corpus to secure release from the custody of Respondent Department of Corrections and Community Supervision (DOCCS). A [*2]different judge of this court had previously ordered petitioner's release. The remaining branch of the petition asserts that various violation charges brought against him were either technical in nature or were not timely noticed. For the reasons stated herein, the petition is GRANTED in part and DENIED in part.

DOCCS released Rountree to community supervision on April 1, 2024 (affirmation of petitioner's counsel). He was allegedly delinquent on his parole obligations as of April 23, 2024, for, among other things, failing to charge his GPS monitor (petition, exhibit B, violation of release report). Parole officers executed Parole Warrant No. 844056 against petitioner on August 27, 2024 (petition ¶ 12). The court held a recognizance hearing on August 28, 2024, at which Rountree was remanded into custody (id.). Rountree "pled guilty to a violation of Rule 1 as written in Charge 12 of the Violation of Release Report" at the preliminary hearing held on September 3, 2024 (id.).

Petitioner challenges the legality of the warrant, arguing that most of the charges described in the violation of release report are technical in nature. The petition involves four sets of violation charges relevant to this analysis.^[FN1]

Charges 1-3, 5-11, and 13 allege that petitioner violated rule 8 of the conditions of release by failing to charge a DOCCS-owned global positioning system (GPS) unit, which "prevented DOCCS staff from monitoring his location," behavior that DOCCS maintains provides for a penalty of imprisonment consistent with the offense of obstructing governmental administration in the second degree (Penal Law § 195.05 [1]).

DOCCS argues that a releasee's failure to charge a GPS ^[FN2] tracker constitutes obstruction of governmental administration, an A misdemeanor (Penal Law § 195.05 [1]). A person is guilty of that offense when:

"Such person intentionally obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act, or by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service or by means of releasing a dangerous animal under circumstances evincing the actor's intent that the animal obstruct governmental administration."

For DOCCS to establish obstruction of governmental administration in the second [*3]degree, it must prove that the releasee acted intentionally. The Penal Law defines an action as "intentional" when "a person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct" (Penal Law 15.05 [1]). An "act" is defined in the penal law as "a bodily movement" (Penal Law 15.00 [1]). A "voluntary act" means "a bodily movement performed consciously as a result of effort or determination and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it," (Penal Law 15.00 [2]).

Petitioner's failure to charge a GPS monitor is more rightly defined as conduct that amounts to an omission, which is defined as "a failure to perform an act as to which a duty of performance is imposed by law" (Penal Law 15.00 [3]). That "conduct" is defined as "an act or omission and its accompanying mental state," (Penal Law 15.00 [4]). Thus, to successfully prove obstruction of governmental administration, respondent needs to establish that petitioner, through his omission to charge the GPS device, obstructed, impaired or perverted the administration of law or other governmental function, or prevented or attempted to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by interfering with a radio, telephone, television or other telecommunication system owned or operated by a governmental entity.^[FN3]

Arguably, failing to charge a GPS device that prevents DOCCS employees from monitoring the location of a releasee does obstruct, impair, or pervert the administration of law or other governmental function of the department. As one of the twenty departments of the executive branch of the government of the State of New York (NY Const, art V, § 2), DOCCS is mandated with the administration of the state prison and parole system (Correction Law art. 2). DOCCS in its mission statement states that it is "responsible for the care, custody, and treatment of individuals sentenced to state prison, working with these incarcerated individuals to ensure successful re-entry into the community and supervising those who are placed on parole" (DOCCS Fact Sheet, September 2025). DOCCS serves a governmental function, and, in turn, its employees are public servants (Penal § Law 10.00 [15]; Correction Law § 10 et seq.).

Additionally, the department shall have the responsibility "[t]o facilitate the supervision of all incarcerated individuals released to community supervision, the commissioner shall consider the implementation of a program of graduated sanctions, . . . [s]uch a program would include various components including approaches that concentrate supervision on new releases, alternatives to incarceration for technical parole violators and the use of advanced technologies," (Correction Law § 201 [3]). One such technology is GPS monitoring.

All individuals released on parole to community supervision are given written notice of thirteen conditions of release and, if applicable, special conditions that pertain to their specific situation (New York State Corrections and Community Supervision Directive No. 9010, Arrival Report and Initial Interview, Date 06/07/2019). The releasee must review the forms and sign [*4]them to acknowledge receipt (id.). Rountree signed the three-page legal-length form, which outlined the conditions of his release and the special conditions of his release, on April 8, 2024 (opposition, exhibit A, certificate of release to parole supervision). On April 12, 2024, petitioner executed additional terms of his special conditions of release (id.). Those special terms totaled seven pages (id.).

The first of the seven pages of special conditions advised petitioner to avoid contact with several individuals (id.). Petitioner was to avoid personal contact, as well as contact through third parties and various modes of communication (id.). Pages 2 and 3, entitled "GPS Tracking Device - Special Conditions," outline the rules for using the device.^[FN4] Page 4 addressed the care, operation, and maintenance of the GPS device assigned to the petitioner (id.). The last three pages delineate prohibited behavior towards the device, including damaging the unit, failing to [*5]charge the device, and tampering with it, and list the applicable penal law offenses (id.). Thus, petitioner was aware of his responsibilities in wearing and caring for the device. He was also made aware of proscribed behavior through both physical acts (damaging the unit or attempting to remove it from his ankle) and omissions (failure to charge the device) (id.).^[FN5]

In arguing that charges 1-3, 5—11, and 13 are only technical in nature, petitioner cites Matter of Burden v New York State Dept of Corr and Community Supervision, Bd of Parole, 84 Misc 3d 774 (City Ct, Monroe County 2024), for the proposition that telecommunication interference is limited to jamming of an emergency frequency or interference with transmissions at the sending tower, Burden at 776. In fact, this provision, added in a 1984 amendment, "permits a finding of 'obstructing governmental administration in the second degree' when the intentional obstruction is 'by means of interfering, whether or not physical force is involved, with radio, telephone, television or other telecommunications systems owned or operated by the state, or a county, city, town, village, fire district or emergency medical service.' Perhaps conscious of the determination in People v Case,^[FN6] the author of part two made it clear that this part of the statute required only 'interfering, whether or not physical force is involved,' with a telecommunications system" (William C. Donnino, Prac. Commentaries, McKinney's Cons Laws of NY, Penal Law 195.05). As the case law on telecommunication obstruction of governmental administration remains sparse, the examples provided in Burden are not exhaustive, and the methods of interference mentioned represent a floor and not a ceiling.

The Burden court, in addressing issues of intent, use of physical force or interference, and telecommunication interference, held that, as there was only one instance of failure to charge a GPS device, it was hard pressed to infer that petitioner intended to interfere with governmental administration or the telecommunication system of a governmental entity (at 776-777). Nor did this court in People ex rel. Johnson v. Martuscello, Index No. 804967-2024 (Bronx County, Nov 24, 2024) (J. Powell), excluded the possibility that a releasee could be charged with obstruction of governmental administration. In Johnson, this court concluded, based on the record before it, that petitioner's two failures to charge his device appeared to be inadvertent (id.).

Unlike Burden and Johnson, Rountree is charged with eleven violations of purposefully allowing the GPS battery to discharge and thereafter failing to charge the device. One failure to charge the device may be deemed a mistake, two failures, a coincidence, three failures establish a pattern, and eleven failures to charge the unit qualifies as deliberate obstructive behavior, which prevented the supervision of an incarcerated individual released to community supervision. One can infer from petitioner's repeated failures to charge the device that he intended to evade monitoring (see People v Steinberg, 79 NY2d 673, 682 [1992] ["intent can be inferred from conduct and the surrounding circumstances"]; Caraballo v City of New York, 726 F3d 140 [EDNY, 2024][in § 1983 action, refusal to open car door during traffic stop justified obstruction of governmental administration charge; see also, People v Webb, 108 AD3d 1064, 1065 [4th Dept 2013, Scudder, J. and Peradotto, J., dissenting] [defendant's repeated phone calls to former girlfriend in violation of order of protection showed intent to harass]).

In People v Choo, 154 Misc 3d 324 (Crim Ct, New York County 1991), a criminal mischief and criminal tampering case, the court held that tampering to alter or interfere with the property of another individual applies even when an individual interferes with radio frequencies. Although Choo found that the radio frequencies and the right to use specific frequencies were not tangible property, the radio signals generated, and the equipment used to transmit and receive those signals were subject to criminal tampering and criminal mischief (at 326-327).

Similarly, the GPS radio signals generated and the equipment used to transmit and receive those signals by DOCCS are also tangible property that can be interfered with. By failing to charge the GPS device, petitioner interrupted the receipt of radio signals generated by the GPS satellite and transmitted to his GPS monitor, as well as the transmission of those signals from his monitor to DOCCS. This inability to receive and transmit radio signals from petitioner's GPS monitoring unit, which originated from the GPS satellite, led to DOCCS' incapacity to perform its official function of supervising the releasee, Rountree. Petitioner's interference, though minimal, caused a disruption of DOCCS' surveillance system (see Matter of Davan L., 91 NY2d 88, 91 [1997] [only minimal interference is required to attach liability for obstruction of governmental administration]). The law as written references an interference with a radio, telephone, television, or other telecommunications system, it does not require a systemwide failure

As the violations in charges 1-3, 5-11, and 13 constituted behaviors consistent with the criminal offense of obstructing governmental administration, DOCCS was not required to issue a notice of violation before issuing a warrant (see Executive Law § 259-i [3] [a] [i]).

Charge 16 alleges that petitioner absconded from supervision, a behavior that warrants a penalty of imprisonment consistent with criminal tampering in the third degree (Penal Law § 145.14). The offense occurs "when, having no right to do so nor any reasonable ground to believe that he has such right, [a person] tampers with property of another person with intent to cause substantial inconvenience to such person or to a third person." A person "tampers" with property "when he or she improperly alters or interferes with such property" (CJI2d [NY] Penal Law § 145.14). Absconding, defined in the Executive Law, not the Penal Law, describes the behavior as "intentionally avoiding supervision by failing to maintain contact or communication with the releasee's assigned community supervision officer or area bureau office and to notify his or her assigned community supervision officer or area bureau office of a change in residence, . . . " (Executive Law §259 [8]).

There is no commonality of elements between the act of absconding and the offense of tampering. Though petitioner could abscond and tamper with the GPS unit, in this instance, each alleged act is mutually exclusive of the other. Petitioner could abscond without tampering with the GPS unit, and conversely, he could tamper with the unit without absconding. However, the act of absconding does not establish that the device was tampered with. This charge, as written, is invalid and, at most, is a technical violation.

Charge 17 alleges that petitioner violated Rule 8 of the conditions of release by possessing a DOCCS-owned GPS unit and failing to return it, a behavior which provides for a penalty of imprisonment consistent with petit larceny (Penal Law § 155.25). A person is guilty of petit larceny when he steals property (Penal Law § 155.25). "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof," (Penal Law § 155.05 [1]). The statute requires specific intent. Temporary or negligent taking or withholding of property would not suffice (see, People v Jensen, 86 NY2d 248 [1995]). Thus, the mere failure to return a GPS unit, as described in the violation charge, is insufficient to establish the crime of petit larceny. This violation charge, as drafted, does not establish a non-technical violation.

Charges 18-21 allege various assaultive behaviors such as choking, headbutting, and verbal threats. Petitioner does not challenge these as technical violations. Instead, petitioner requests dismissal of these charges as they were not timely noticed. Specifically, these charges were served upon petitioner in a supplementary violation of release report on September 9, 2024, the date of petitioner's final hearing. Petitioner must receive timely notice of the alleged violations that DOOCS may use at the final hearing. By statute, "the releasee shall, at the conclusion of the preliminary hearing be given written notice of the time, place and purpose of the final revocation hearing. The notice shall state what conditions of community supervision are alleged to have been violated, when, where and in what manner . . ." (Executive Law § 259-i [3] [c] [ix] [emphasis added]). As petitioner did not receive notice of the supplemental charges until after the preliminary hearing concluded, the notice was not timely. Thus, charges 18-21 were untimely.

Accordingly, it is

ORDERED that respondent is barred from proceeding on the supplemental charges contained within supplementary violation of release report No. 1 at petitioner's final revocation hearing unless petitioner receives notice of those charges at a new preliminary hearing.

This decision constitutes the order of the court.