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In re Application of DeFina

Supreme Court, Bronx County

April 10, 2009

In the Matter of the Application of Anthony DeFina, Petitioner For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
v.
New York State Division of Parole, Respondent

Anthony DeFina, Pro Se For Respondent

Thomas Biesty, Assistant Attorney General

Lucy Billings, J.

Petitioner challenges the New York State Board of Parole's decision dated March 22, 2007, revoking his parole, incarcerating him for 18 months, and thus extending his mandatory parole supervision to May 2011. C.P.L.R. § 7803. Although he was released from incarceration May 29, 2008, he still challenges the determination insofar as it extended his mandatory parole supervision from July 2009 to May 2011 and seeks a new parole revocation hearing.

I. UNDISPUTED FACTUAL BACKGROUND

Petitioner first was released from incarceration on parole July 13, 2006. A special condition of his release on parole was that he maintain a curfew from 9:00 p.m. to 7:00 a.m. 9 N.Y.C.R.R. §§ 8003.2(l), 8003.3. On November 29, 2006, parole officers found that petitioner was not at his residence after 9:00 p.m. He was charged with a violation of this special condition of his release and two further violations of the conditions of his release on the same date: possession of a dangerous knife without an adequate explanation, 9 N.Y.C.R.R.§ 8003.2(i), and fraternization with another parolee. 9 N.Y.C.R.R. § 8003.2(g).

At the preliminary parole revocation hearing December 7, 2006, where petitioner was represented by an attorney, the hearing officer found that the New York State Division of Parole showed probable cause that petitioner possessed a dangerous knife without an adequate explanation, in violation of the terms of his parole. 9 N.Y.C.R.R. § 8003.2(i). At the final parole revocation hearing March 9, 2007, where petitioner also was represented by an attorney, the Division of Parole withdrew its charges regarding possession of a knife and fraternization with another parolee, in exchange for petitioner's plea to violation of his curfew. On March 22, 2007, the Board of Parole imposed 18 months of incarceration as punishment.

Since petitioner has completed the period of incarceration, its length is no longer an issue, except insofar as it extended his ensuing mandatory parole supervision from three years after his initial release in July 2006 to three years after his release from the subsequent 18 months of incarceration. NY Exec. Law § 259-j(4). Therefore the issue to be determined is whether the record provides grounds to vacate his plea to the curfew violation and the resulting revocation of his parole.

II. THE CONDUCT OF THE PRELIMINARY HEARING

A. The Denial of an Adjournment

At the outset of the preliminary hearing December 7, 2006, petitioner, through his attorney, requested an adjournment because his landlady was unavailable that day and he wanted to subpoena her as a witness. He presented a letter from her demonstrating her knowledge of whether the knife parole officers recovered belonged to her or her employees, for use in renovating or repairing petitioner's apartment, rather than belonging to petitioner. He claims not only that she was unavailable December 7, 2006, but also that he was not notified of his right to subpoena witnesses at the preliminary hearing. The Notice of Violation that he signed as received November 29, 2006, informed him that at that hearing he was "entitled to . . . present witnesses who can give relevant information," but did not inform him of any right or procedure to subpoena witnesses who might not appear voluntarily. Respondent's Supplemental Ex. A. A subpoena, moreover, required petitioner's appearance before the hearing officer, as only she, not petitioner or his attorney, was authorized to issue a subpoena to compel attendance at the preliminary hearing. 9 N.Y.C.R.R.§ 8000.6(a)(1).

The same notice also informed petitioner that:

A request to adjourn . . . should be made in the case of a preliminary hearing, at least three days . . . prior to the hearing, in writing, to the local area office. Requests for adjournments made at the hearing will only be granted in exceptional cases.

Respondent's Supplemental Ex. A. The record does not establish, however, that petitioner failed to follow the procedure for requesting an adjournment in advance. The hearing officer recounted that, before the hearing, petitioner's attorney had notified the Division of Parole that petitioner sought an adjournment to enable him to call a witness who was unavailable December 7, 2006. Nowhere does the hearing ...


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