The People of the State of New York ex rel. Anthony Frazier, Warrant #655790 B & C #141-13-03898, NYSID No.03728942L, Petitioner,
Warden, Rikers Island Correctional Center, and New York State Department of Corrections and Community Supervision, Respondents.
Elon Harpaz, Esq. Legal Aid Society For the Petitioner.
Anna Hehenberger Assistant Attorney General Counsel for the Respondent.
Richard L. Price, J.
By habeas petitions submitted August 7, 2013 (Index No. 250844-2013), and September 4, 2013 (Index No. 251045-2013), respectively, petitioner moves for orders vacating his parole warrant and releasing him from the custody of New York State Department of Corrections and Community Supervision (DOCCS or Respondent). Specifically, petitioner asserts that he is being illegally detained because DOCCS failed to provide timely notice of the alleged parole violations thereby depriving him of his right to a knowing and voluntary waiver of the preliminary hearing in violation of Executive Law §§ 259-i (3) (c) (i), (iii), and (iv), the Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution and NY Constitution, article I, § 6. By decision dated September 16, 2013, this court dismissed both petitions.
Upon further review of the parties' respective papers submitted in connection with these matters, this court modifies and amends its initial decision and order to the extent that the petition filed under Index No. 251045-2013 is sustained.
I. Background and Procedural History
On, November 7, 1994, judgment was entered against petitioner in Supreme Court, Bronx County (Bamberger, J.), convicting him of attempted robbery in the first degree (PL § 160.15) and criminal possession of a controlled substance in the fifth degree (PL § 220.06). Petitioner was sentenced to an indeterminate term of life imprisonment with a mandatory minimum period of eight years.
On or about November 16, 2011, petitioner was conditionally released and scheduled for lifetime supervision by DOCCS. In connection with his conditional release, petitioner signed a document entitled "Certificate of Release to Parole Supervision" (see Respondent's 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
1. I will proceed directly to the area to which I have been released, and, within twenty-four hours of my release, make my arrival report to the Office of the Division of Parole, unless other instructions are designated on my release agreement.
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.
8. I will not behave in such manner as to violate the provisions of any law to which I am subject which provide for a penalty of imprisonment, nor will my behavior threaten the safety or well-being of myself or others.
On or before September 28, 2012, petitioner is alleged to have changed his approved residence located at 400 East 30th Street, New York, New York (Bellevue Men's Shelter) without notifying his parole officer or other DOCCS representative in violation of Release Condition 4.
On October 1, 2012, petitioner is also alleged to have failed to make both his arrival report and scheduled office visit in violation of Release Conditions 1 and ...