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People ex rel. Dolan v. Schiff

County Court, Sullivan County

February 26, 2018

The People of the State of New York ex rel. Rory Dolan, Petitioner
v.
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

          Eric T. Schneiderman, Esq. Attorney General of the State of New York

          By: Heather R. Rubenstein, Esq., Assistant Attorney General Attorneys for Respondents Anthony J. Annucci and Tina M. Stanford

          Cheryl McCausland, Esq. Sullivan County Attorney County Government Center By: Andrew J. Ford, Esq. Attorneys for Respondent Michael A. Schiff

          HON. FRANK J. LABUDA, JUDGE.

         Procedural Background

         On 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 [1]. 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).

         Petitioner 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.

         On the 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.

         The 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 Officer's visit.

         Following 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 parole officer.

         A 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 Violation Hearing.

         Petitioner, 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 inspection.

         The 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 ...


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