IN RE: Anacin Hymes (2026)

Anacin Hymes ("Appellant") appeals from a Parole Revocation Decision rendered on June 10, 2025, wherein the Administrative Law Judge ("ALJ") sustained five violations and imposed an 18-month time assessment.

Counsel for the Appellant filed an initial brief on October 17, 2025. After several pro se submissions, this Court granted leave for Appellant to file a revised brief that incorporates Appellant's pro se arguments. Counsel filed the revised brief on December 15, 2025.

Appellant argues: (1) the ALJ erred in commencing the final hearing in Appellant's absence; (2) the technical charge of absconding was not properly sustained; (3) there was insufficient proof to establish by clear and convincing evidence that Appellant committed Obstruction of Governmental Administration in the Second Degree; (4) the ALJ erred in finding that the commission of a Petit Larceny violated the conditions of Appellant's release in an important respect; and (5) the time assessment is unduly harsh or severe and should be reduced. For the reasons stated below, the decision revoking Appellant's release is reversed, and the matter is dismissed.

Appellant argues that the ALJ violated his fundamental right to be present by conducting the final parole revocation in his absence. As a preliminary matter, the Court rejects Respondent's contention that Appellant failed to preserve the issue for review. Defense counsel expressly noted Appellant's absence when asked if he was prepared to proceed, stating he had spoken with Appellant's wife by telephone and expected Appellant to appear. When the ALJ inquired as to whether both parties were ready to commence the hearing, defense counsel responded, "[b]esides my client not being here, yes." Defense counsel's objection, although brief, was nevertheless timely, clear, and specific (See People v Rosen, 81 NY2d 237 [1993]). Despite defense counsel's exception, the ALJ commenced the hearing absent Appellant's presence and in doing so, "expressly decided the question raised on appeal, thus preserving the issue for further review." (See People v Smith, NY3d 462, 465 [2013].)

Assuming arguendo that the matter was not preserved by objection, preservation is not necessary when there is a fundamental prejudicial error or deviation from the mode of proceedings prescribed by law (See People v Argamonte, 87 NY2d 766 [1996]; People v Kelly, 5 NY3d 116 [2005]). It is well settled that a defendant has a fundamental right to be present at a criminal trial (NY Const, art 1, § 6; US Const 6th Amend; CPL § 260.20). And defendant's right to be present at all material stages of trial is fundamental and not subject to harmless-error analysis (People v Vargas, 278 AD2d 807 [Sup Ct App Div 4th Dept 2000], citing People v Mehmedi, 69 NY2d 759 [1987]). This fundamental due process right extends to post-trial hearings including a parolee's right to be present and to be heard at a parole revocation hearing (See Wyche v New York State Div. of Parole, 66 AD3d 541 [1st Dept 2009], citing Morrissey v Brewer, 408 US 471, 488-489 [1972]; see also People v. Guitierrez-Lucero, 103 AD3d 89 [Sup Ct App Div 2nd Dept 2012] [court found sex offenders facing risk level classification have certain due process rights including the right to be present]). The right of a parolee to be present at their parole hearing is further codified in Executive Law § 259-1 [3].

Furthermore, Appellant did not waive his right to be present at the final hearing through his conduct. The record reflects that the ALJ provided an admonishment summarized in Appellant's brief as Parker Warnings where Appellant was informed that if he did not appear at the final parole hearing, the matter would proceed in his absence (See generally People v Parker 57 NY2d 136 [1982]). When Appellant did not appear promptly at 2:00 p.m. for his final revocation hearing, the hearing commenced at 2:01 p.m., in abstentia. Appellant arrived in court at 2:20 p.m., after the first witness had completed their testimony. He explained that he arrived at the courthouse at 1:40 p.m., but his arrival at the hearing was delayed by unusually long security lines. Appellant was present for the remainder of the hearing and was taken into custody at its conclusion.

Under the circumstances presented, Appellant did not voluntarily, knowingly, and intelligently waive his right to be present by conduct under Parker. Respondent argues that Appellant waived his right to be present by failing to appear after receiving Parker Warnings. However, the ALJ merely stated at the final parole hearing that warnings had previously been issued and then proceeded without conducting any inquiry or making the necessary factual findings. "Before proceeding in a defendant's absence, the court must make an inquiry and recite on the record the facts and reasons it relied upon in determining that the defendant's absence was deliberate." (People v Kerr, 234 AD3d 794 [App Div 2nd Dept 2025], citing People v. Brooks, 75 NY2d 898 [1990].) Although Parker concerned a defendant's failure to appear at trial, the same precepts apply to post-conviction hearings (See People v Callahan, 134 AD3d 1432 [App Div 4th Dept 2015] [new violation of probation hearing ordered after finding the lower court filed to inquire into the surrounding circumstances and determined that the defendant's absences was deliberate]). Without such inquiry and findings, the hearing should not proceed (id at 1433). The record fails to establish that the ALJ inquired into the facts and circumstances or made the requisite determination that Appellant deliberately failed to appear prior to beginning the parole hearing in abstentia.

Accordingly, the Court finds that Appellant's fundamental due process right to be present at his parole revocation hearing was violated and no valid waiver of that right occurred. Unless a parolee unambiguously waives his right to a parole hearing, the failure to afford him one results in his restoration to parole (People ex rel. Melendez v Warden, Rikers Island Corr. Facility, 214 AD2d 301, 303 [1st Dept. 1995]; Matter of Wyche 66 AD3d541). Because restoration is required in this case, Appellant's remaining arguments are rendered moot.

Accordingly, it is hereby ORDERED that ALJs decision is reversed, parole warrant No. A014762 is vacated, the associated delinquency is canceled, and Appellant is restored to supervision; it is further

ORDERED that Appellant is released on parole warrant No. A014762 and is released unless subject to another warrant or commitment that is not predicated upon the alleged violation of parole; it is further

ORDERED that the securing order entered at the revocation hearing on this warrant is superseded and shall no longer detain the Appellant.

The above constitutes the Decision and Order of the Court.

Dated: July 16, 2026

Hon. Jacquelyn L. Grippe

Rochester City Court

Jacquelyn L. Grippe, J.