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People ex rel. Smith v. Warden, Rikers Island Correctional Facility

Other Lower Courts

January 3, 2008

The People of the State of New York ex. rel. Terry Smith, aka Terrell Neal, Petitioner,
v.
Warden, Rikers Island Correctional Facility, and New York State Division Of Parole, Respondents.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

OPINION

Richard Lee Price, J.

Petitioner moves by writ of habeas corpus alleging that he was not allowed to speak at his final revocation hearing and that he was denied effective assistance of counsel.

The relevant facts are as follows. On February 16, 1994, petitioner was convicted of robbery in the second degree in New York County Supreme Court (Galligan, J.) and sentenced to an indeterminate prison term of ten years to life.

On November 21, 2006, petitioner was released from Queensboro Correctional Facility to parole supervision. One of the conditions of petitioner's release was that he reside at Bellevue Men's Shelter located at on East 30th Street in Manhattan. A second condition of his release was that he report to his parole officer within 24 hours of his release.

On December 8, 2006, parole warrant number 468703 was issued charging petitioner with two violations: (1) failing to report within 24 hours of his release from the Queensboro Correctional Facility; and (2) failing to arrive at his approved residence, the Bellevue Men's Shelter. The warrant was not lodged against petitioner until April 15, 2007. The delay in executing the warrant was due to petitioner's absconding.

On April 26, 2007, petitioner's preliminary parole revocation hearing was held. Hearing Officer Audrey Crawford made a finding of probable cause.

Petitioner's final parole revocation hearing was held on June 7, 2007 before Administrative Law Judge John Cox. Petitioner was represented by Legal Aid attorney David Moore, Esq. At the beginning of the hearing, following a reading of the two charges contained in the Violation of Release Report, Mr. Moore entered a "not guilty" plea to both charges on petitioner's behalf.

The sole witness to testify at the final hearing was petitioner's parole officer, Parole Officer Covington. Parole Officer Covington testified that petitioner failed to go to his approved residence at the Bellevue Ben's Shelter after his release from custody and failed to report to parole within 24 hours.

After petitioner's attorney concluded his cross-examination of Parole Officer Covington, petitioner asked if he could "speak his mind" (H:13). The Administrative Law Judge responded, "no," and asked petitioner whether he had a question for the parole officer (H:14). After petitioner responded that he wanted to ask the parole officer something, the Administrative Law Judge directed petitioner to "have a seat" and consult with his attorney (H:14). The record reflects that shortly thereafter petitioner became agitated, whereupon the following transpired (H:14-15):

THE COURT: No, you're going to be quiet right now or the C.O.'s will be brought in here and

PETITIONER: Listen.

THE COURT: You'll be removed.

PETITIONER: Let me let me get out of here then. I don't care, man. You ain't doing me no favor. Excuse me, Sir.

THE COURT: You're not doing yourself any favors.

PETITIONER'S ATTORNEY: I think you should probably stay here for the rest of your hearing.

PETITIONER: Excuse me.

THE COURT: All right. Let the record reflect that the parolee has decided to just walk out of the hearing.

After determining that petitioner's attorney had no additional questions for the witness, the Administrative Law Judge took argument from both sides. Petitioner's attorney asked for a lenient time assessment in the event that the court sustained the charges. The Administrative Law Judge found petitioner guilty of both charges, revoked his parole, and imposed a delinquent time assessment of twelve months.

By petition for a writ of habeas corpus submitted to this Court on October 31, 2007, petitioner alleges that he was not permitted to speak at the final hearing and that he was denied effective assistance of counsel. [1] In his amended petition dated September 8, 2007, petitioner also asserts that he was not sworn in at the hearing and that he was removed from the hearing when he attempted to say a few words. In his reply papers, petitioner claims that he filed an administrative appeal, but did not perfect it because "the Division of ...


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