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TAYLOR v. SULLIVAN

October 8, 1997

RODNEY TAYLOR, Plaintiff, against KAREN SULLIVAN, Defendant.


The opinion of the court was delivered by: GOETTEL

 GOETTEL, D.J.:

 Following a three day trial, a jury returned a verdict finding defendant Karen Sullivan liable for intentionally harassing plaintiff Rodney Taylor by filing reports against him that she knew to be false. Defendant then renewed her motion for judgment as a matter of law, as to which decision had been reserved at trial. For the reasons discussed below, defendant's motion is GRANTED.

 FACTUAL BACKGROUND

 On September 27, 1988, Taylor did not report to the Mt. Vernon Parole Office despite having been instructed to do so during his arrival report. Sullivan then made a home visit to the rooming house, wherein she learned from the proprietor that Taylor had never lived there.

 On October 11, 1988, Taylor made his first office report to the Mt. Vernon office. At trial, he disputed Sullivan's assertion that he appeared "disheveled" at this meeting, but admitted that he had spent the night drinking and sleeping on a park bench. At the beginning of this visit, Taylor and Sullivan's first meeting, Sullivan either observed a bulge in Taylor's trenchcoat pocket, heard a "clank," or both. Taylor was subsequently handcuffed and, after a delay of disputed length, he was pat-frisked by Sullivan in the presence of Parole Officer Frank Viggiano, Jr. During the search, Sullivan recovered a partially empty bottle of peach schnapps, but no other contraband.

 When asked where he was residing, Taylor admitted that he did not live at the 535 South 7th Avenue address, but stated that he was staying with his aunt and uncle at 421 South 7th Avenue. After discussing with her supervisor Taylor's failure to notify her of a residence change, a violation of Rule # 4 of the rules governing Taylor's parole, *fn2" Sullivan decided to allow Taylor to remain on parole supervision. She removed the handcuffs, and after further discussion, instructed Taylor to report again at 10:30 a.m. on October 18, 1988, in order to discuss his background and needs.

 On October 18, 1988, Taylor failed to report as instructed, but did report that evening to a report center at City Hall. At that time, Sullivan informed Taylor that he must report again at 10:30 a.m. on October 21, 1988, at the parole office for a special meeting.

 On October 20, 1988, at approximately 4:15 p.m., Taylor reported to the Mt. Vernon parole office. Sullivan was out of the office, and Taylor spoke with Parole Officer Donnie Rogers ("Rogers"), Sullivan's partner. Taylor told Rogers that he was moving his residence upstate that night because of a family emergency *fn3" and asked to be excused from reporting the next day. Rogers excused Taylor from reporting the next day, but apparently did not understand from their conversation that Taylor had been specifically instructed by Sullivan to report on the morning of October 21, 1988 for a special meeting. Instead, Rogers likely assumed that the October 21, 1988 report was to be a regularly scheduled report.

 After being informed by Rogers that Taylor would not be reporting that morning, Sullivan and Senior Parole Officer John Rogan ("Rogan") visited Taylor's aunt's residence. The aunt allegedly informed them that Taylor had slept there that night, had not yet moved upstate, and had just left for the welfare office a few minutes earlier. *fn4" Rogan and Sullivan attempted to find Taylor at the welfare office, but they were unsuccessful.

 Taylor telephoned Sullivan on October 25, 1988, his next reporting date, to say that he had decided to report to his former parole office in Ulster County. Sullivan directed Taylor to report to her at the Mt. Vernon parole office by 8:00 p.m., but he failed to appear. Sullivan prepared a violation of release report, signed by both her and Rogan, dated October 27, 1988, which charged Taylor with failing to appear on October 21, 1988, but made no mention of his absence on October 25, 1988. A parole arrest warrant was also signed by Rogan and issued.

 Taylor did not subsequently report to either Sullivan or his former parole officer, and his whereabouts were unknown to the Division of Parole until he was arrested as a parole violator in Ulster County on December 6, 1988. On December 7, he was served with a notice of violation and violation of release report at the Ulster County Jail. At that time, Taylor requested a preliminary hearing.

 Taylor was charged with two violations of parole: (1) failing to report on October 21, 1988, as directed; and (2) lying to Rogers on October 20, 1988, when he stated he could not report on October 21, 1988 because he was moving upstate. A preliminary parole revocation hearing was held at the Ulster County Jail on December 15, 1988, at which Rogan testified on behalf of the Division of Parole. Sullivan was not in attendance. At the conclusion of the hearing, probable cause to believe a violation had been committed was found. A final hearing was held on February 14, 1989 at the Ulster County Jail. Sullivan and Rogan were present at that hearing and both testified on behalf of the Division of Parole.

 In a written decision issued on March 17, 1989, charge one was sustained and charge two was dismissed. In reviewing the evidence as to charge two, the hearing officer noted the absence of Rogers' testimony and the unavailability of Taylor's aunt's testimony due to her death. The hearing officer therefore found that "there was insufficient evidence to show by a preponderance that the parolee lied to Parole Officer Rogers." The Board of Parole ("the Board") consequently revoked Taylor's parole and ordered him held for one year. Taylor filed a petition for a writ of habeas corpus with the Special Term of Ulster County Supreme Court in December, 1988. On March 30, 1989, he filed a notice of intent to administratively appeal the decision of the Board revoking his parole.

 In April, 1988, the Attorney General's Office mailed a copy of the habeas corpus petition to the Division of Parole's Counsel's Office, requesting further information in order to respond to the petition. Thereafter, the Appeals Unit's counsel recommended reversal of the Board's earlier determination, *fn5" noting:

 
Upon review of the petition, the Violation of Release Report and the transcript of the final hearing, it is apparent that the parolee's claim has merit. Failure to report on 10/21/88 was the sole charge ultimately sustained by the Hearing Officer and affirmed by the Commissioner. While a review of the final hearing transcript indicates that sufficient evidence may have existed to sustain other potential charges of violation of parole, *fn6" such charges were not included in the report under consideration at the time of the hearing. Moreover, the final hearing transcript reflects testimony by Division witnesses that the parole officer's partner may have excused the parolee from reporting as originally directed by his parole officer. In addition, the parole officer who excused the parolee from reporting on the day in question was not produced as a witness at the revocation hearing; thus preventing the Division from substantiating the exact nature and scope of the permission not to report. On that basis, there was insufficient evidence produced to sustain the charge of failing to report, and accordingly the revocation of parole should be reversed, delinquency canceled and appellant restored to parole supervision.

 On May 4, 1989, Taylor was released and restored to parole supervision pursuant to an unpublished decision of the Appeals ...


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