The People of the State of New York ex rel. Rory Dolan, Petitioner
Michael A. Schiff, Sheriff, Sullivan County; ANTHONY J. ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision; and TINA M. STANFORD, Chairwoman, New York State Board of Parole, Respondents.
Carter, Ledyard & Milburn, LLP By: Alan Lewis, Esq.
Attorneys for Petitioner, Rory Dolan
T. Schneiderman, Esq. Attorney General of the State of New
Heather R. Rubenstein, Esq., Assistant Attorney General
Attorneys for Respondents Anthony J. Annucci and Tina M.
McCausland, Esq. Sullivan County Attorney County Government
Center By: Andrew J. Ford, Esq. Attorneys for Respondent
Michael A. Schiff
FRANK J. LABUDA, JUDGE.
April 20, 1995, Petitioner was convicted after jury trial of
two (2) counts of Rape in the 1st Degree, two (2) counts of
Sexual Abuse in the 1st Degree, two (2) counts of Robbery in
the 1st Degree, and two (2) counts of Burglary in the 1st
Degree, and one (1) count of Unauthorized Use of a Motor
Vehicle in the 1st Degree . Petitioner received an aggregate
sentence of twenty (20) to forty (40) years in prison.
Petitioner appealed his conviction, which was denied.
People v. Dolan, 2 A.D.3d 745 (2d Dept 2003); leave
to appeal denied, People v. Dolan, 8 N.Y.3d 845 (Ct
App 2007). Petitioner also applied for a writ of error coram
nobis to vacate his conviction, which was also denied.
People v. Dolan, 33 A.D.3d 721 (2d Dept 2006).
Lastly, Petitioner sought a write of habeas corpus in the
United States District Court, Eastern District, which was
also denied. Dolan v. Donelli, 2010 WL 5491101 (EDNY
Dec. 30, 2010), denial affirmed, Dolan v. Donelli,
2012 WL 4483004 (EDNY Sept. 27, 2012).
was released from prison to parole supervision on his
conditional release date of November 16, 2017. Petitioner was
subject to several written conditions of release, the
relevant condition herein being that Petitioner "would
not own or possess a beeper, scanner, or cell phone without
the permission of his Parole Officer." Even if given
permission to own or possess any of these devices, said
device could not have photograph or video capabilities, nor
could said device have Internet capabilities.
merits of this Writ, the Respondents contend, and Petitioner
disputes, that Petitioner's Parole Officer gave
Petitioner an oral condition that should he obtain a cell
phone, he was to immediately notify her so that she could
determine whether the cell phone conformed to the conditions
for cell phones of the Sex Offender Registration Act.
following facts, however, are undisputed by either party for
purposes of this Writ: that on November 30, 2017,
approximately two (2) weeks after his release,
Petitioner's Parole Officer arrived unannounced at
Petitioner's residence. While at Petitioner's
residence, Petitioner's Parole Officer viewed a cell
phone case and/or packaging on Petitioner's kitchen
counter. Upon his Parole Officer's questioning,
Petitioner admitted that his step-father had recently
purchased a cell phone for him, which had arrived by mail to
Petitioner's residence (which is his step-father's
home) on November 28, 2017. Petitioner admitted to being in
possession of the cell phone, which was located in
Petitioner's bedroom at the time of the Parole
the Parole Officer's discovery of Petitioner's
possession of a cell phone, a parole violation warrant was
issued. Petitioner was taken into custody at Sullivan County
Jail, where Petitioner is currently detained. Petitioner was
charged with three (3) violations of the conditions of his
release, namely that (1) he possessed a communication device
(Verizon Kyocera cell phone) without prior written permission
from his parole officer, (2) that he possessed the internet
on a Verizon Kyocera cell phone without prior written
permission from his parole officer, and (3) that he possessed
a Verizon Kyocera cell phone without the permission of his
Preliminary Violation Hearing was held on December 13, 2017,
wherein Petitioner's Parole Officer proceeded only on
Charge #3- that "Petitioner possessed a Verizon Kyocera
cell phone without the permission of his parole
officer." Petitioner was represented by counsel at this
Hearing. After hearing testimony from both Petitioner and his
Parole Officer, as well as Petitioner's step-father, the
Hearing Officer determined that probable cause existed to
detain Petitioner on a parole violation pending a Final
by Order to Show Cause, seeks by writ of Habeas Corpus
pursuant to CPLR §7009(e) to be released from detention
at Sullivan County Jail and, in the alternative, admitting
Petitioner to bail pending a final disposition of this Writ.
Petitioner contends that there was no probable cause for
Petitioner to have been found to have violated the conditions
of his parole, in that Petitioner denies that he was directed
by his Parole Officer to immediately notify her of his
possession of a cell phone. Petitioner claims that he had
permission from his Parole Officer to obtain a cell phone,
and that he intended to inform her of this at their next
meeting on December 8, 2017 and bring the cell phone for her
parties appeared before this Court for oral argument on
February 6, 2018. The Petitioner argued that there was no
sufficient evidence presented at the Preliminary Parole
Violation Hearing for the Hearing Officer to find probable
cause that Petitioner had possessed a cell phone without his
Parole Officer's permission. Petitioner contends that the
"clear and unambiguous testimony" of
Petitioner's Parole Officer evidences that Petitioner in
fact had permission to obtain a cell phone, and that
Petitioner's Parole Officer instructed Petitioner to
obtain a cell phone. Petitioner argues, therefore, that his
detention pending a Final Parole Violation Hearing is illegal
and constitutes a deprivation of ...