The People of the State of New York ex rel. Denmark Small, Petitioner,
Warden, Rikers Island Correctional Facility, and NEW YORK STATE DIVISION OF PAROLE, Respondents.
For Petitioner Simone Petromelis, Esq.
For Respondent Division of Parole Eric T. Schneiderman, Attorney General Anne M. Hehenberger, Esq., Assistant Attorney General
DOMINIC R. MASSARO, J.
This is a special proceeding, whereby Petitioner Denmark Small (hereinafter Petitioner) seeks a habeas corpus writ ordering his release from Respondents' custody upon grounds that his final parole revocation hearing was not conducted in a timely fashion as required by Executive Law §259-i(3)(f).
In this regard, Petitioner says his constitutional (Const. Amend. VI) and statutory (Exec. Law §259-i [f][iii]) rights to be served written notice of a final hearing, which contains all charges that the New York State Division of Parole (hereinafter "Parole") intends to bring against him, must be served at least fourteen days in advance of the final hearing (Exec. Law §259-i [f][iii]). Here, Petitioner says his constitutional rights were violated when he received only ten days notice of the final hearing date listed on the Notice of Violation (Exhibit H); thereby depriving him of due process (Const. Amend. XIV[§ 1]). On the other hand, Respondents oppose the writ petition, arguing instead that Petitioner's claims are without merit in that his final hearing, in fact, was not held earlier than fourteen days after the preliminary hearing waiver. Further, Parole notes that Petitioner received adequate notice of the charges against him. Finally, because Petitioner demanded adjournment of the parole revocation case to the "K-Calendar,  " ninety days have not elapsed since Petitioner waived his preliminary hearing which was to decide the issue of probable cause. Therefore, Petitioner's claim for relief is premature.
Petitioner's Hearing Objections
Petitioner wants the Court to compel the Warden and Parole to vacate the pending warrant and cancel any pending parole delinquencies. Petitioner objects to Parole charging him with three violations contained in the Violation of Parole Report (Exhibit C), two of which occurred on July 5, 2012, when Petitioner tested positive for marijuana use while on parole. Specifically, Parole charged Petitioner with (1) using marijuana without proper medical authorization (violation of Condition of Release No. 11); (2) failing to attend substance abuse treatment at the Center for Community Alternatives without permission (violation of Condition of Release No. 12); and (3) failing to report to his parole officer on August 2, 2102 (violation of Condition of Release No. 12)(Exhibit C).
On August 27, 2012, Parole issued a supplemental Violation of Parole Report (Exhibit E) adding an additional charge, that is, Petitioner violated Condition of Release No. 4 when he left his approved residence in Brooklyn without notifying his parole officer of his new residence. Ironically, on the same day, Petitioner was arrested for assault in the first degree (Penal Law §120.04), attempted murder of Quintell Gannaway in the second degree (Penal Law §125.25), and criminal possession of a weapon in the fourth degree (Penal Law §265.01) (Exhibit F). 
The arrests caused Parole to issue a Second Supplemental Violation of Parole Report (Exhibit G) charging Petitioner with (1) intentional shooting of Gannaway (violation of Condition of Release No.8); (2) possessing a loaded firearm capable of causing injury or death (violation of Condition of Release No.9); (3) threatening Gannaway's safety (violation of Condition of Release No.8); and (4) firing a loaded gun at Gannaway (violation of Condition of Release No.8). Petitioner acknowledged service of the notice on August 30, 2012, and conceded he waived a preliminary hearing intended to determine probable cause in the parole revocation matter (Exhibit H).
As previously stated, Petitioner is statutorily entitled to fourteen days notice of the charges against him before the final parole revocation hearing can be held (see, Executive Law §259-i[f][iii]). Further, Petitioner says the sole remedy for any such violation is vacatu r of the parole warrant and reinstatement to parole (see generally, People ex rel. Johnson v. New York State Board of Parole, 71 A.D.2d 595 [1st Dept. 1979]). Finally, Petitioner argues the proceeding must be vacated because he was entitled not only to timely notice but also to "informative notice" detailing the charges against him (see generally, People ex rel. Levy v. Walters, 87 A.D.2d 620 [2nd Dept. 1982]).
Petitioner admits receiving a Notice of Violation (Exhibit H) and Violation of Release Reports (Exhibits C, E, and G) on August 30, 2012. As can be seen from inspection of the Notice of Violation, Petitioner waived his preliminary hearing and the final hearing on the form was scheduled for September 10, 2012, which Petitioner says violates Executive Law §259-i(3)(f)(iii)'s requirement that counsel and petitioner have two weeks notice of the final hearing.
Parole says Petitioner had adequate notice of the final parole revocation hearing's date as required under Executive Law §259-i (3)(f)(iii).  While an argument may exist that the initial date of the final hearing was outside the statutory period requirement, Parole says any defect was cured when the hearing officer adjourned the final hearing to September 26, 2012. Further, Petitioner's writ is premature because the final hearing has not occurred and is now scheduled for December 5, 2012. In effect, Parole says, ...