The People of the State of New York ex rel. Patrick Day, Petitioner,
New York State Department of Corrections and Community Supervision, and WARDEN, Rikers Island Correctional Facility, Respondents,
Kerry Elgarten, Esq. Legal Aid Society For the Petitioner.
James Cooney Assistant Attorney General Counsel for the Respondent.
Richard L. Price, J.
Petitioner moves by writ of habeas corpus for an order vacating his parole warrant and releasing him from the custody of Department of Corrections and Community Supervision (DOCCS). By petition submitted April 25, 2012, petitioner asserts that he is being illegally detained because the Division deprived him of his right to be present at the preliminary hearing in violation of Executive Law § 259-i (3) (c) (i) and (iv), as well as the Due Process Clause of the Fourteenth Amendment of the United States Constitution and New York Constitution, article I, § 6. By decision dated June 22, 2012, this court sustained petitioner's writ. This expands that decision.
On June 6, 2010, judgment was entered against petitioner in Supreme Court, New York County, upon his conviction of attempted criminal possession of a weapon in the second degree. Defendant was sentenced to a determinate term of two years imprisonment and a period of one-and-a-half years of post-release supervision.
On April 22, 2011, petitioner was conditionally released and scheduled to be supervised by DOCCS through October 22, 2012. In connection with his conditional release, petitioner signed a document entitled "Certificate of Release to Parole Supervision" (see Respondents' Exhibit A). By signing this document, petitioner agreed to comply with the terms and conditions set forth in it, which included the following:
CONDITIONS OF RELEASE
2. I will make office and/or written reports as directed.
4. I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property. I will discuss any proposed changes in my residence, employment or program status with my Parole Officer. I understand that I have an immediate and continuing duty to notify my Parole Officer of any changes in my residence, employment or program status when circumstances beyond my control make prior discussion impossible.
DOCCS contends that on August 9, 2011, petitioner changed his approved residence without notifying or receiving approval from his parole officer. DOCCS further asserts that on August 10, 2011 and August 12, 2011, petitioner failed to make an office report to his Parole Officer (see Respondents' Exhibit E).
Based on these circumstances, DOCCS issued a Violation of Release Report charging petitioner with violating the above-stated conditions of parole on August 26, 2011. In conjunction with that report, DOCCS issued Parole Warrant No. 633181 (the warrant) against petitioner, also on August 26, 2011.
On February 5, 2012, the warrant was executed, and lodged, against petitioner (see Respondents' Exhibit C). The next day, on February 6, 2012, DOCCS served petitioner with a copy of the Violation of Release Report (see Respondents' Exhibit E) and Notice of Violation (see Respondents' Exhibit F). Petitioner elected to have a preliminary parole revocation hearing, which was scheduled for February 10, 2011.
On February 10, 2011, petitioner did not appear at the preliminary hearing. Notwithstanding his non-appearance, DOCCS Parole Hearing Officer Sharon Burnett (PHO Burnett) conducted the hearing in absentia. PHO Burnett found probable cause existed that petitioner violated a condition of his release to parole supervision in an important respect (see Respondents' Exhibit "G").
Petitioner, citing his Muslim status, alleged that he refused production at the preliminary hearing in observance of Friday rituals. Consequently, he argues, that the hearing in absentia unconstitutionally deprived him of his right to due process. By order dated May 14, 2012, this court ...