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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.
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 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.
At the Preliminary Parole Violation hearing, Petitioner's Parole Officer testified that she had advised Petitioner that he had permission to obtain a cell phone with the caveat that upon his “immediate possession” of same, Petitioner was to notify his Parole Officer by telephone so that she could temporarily ensure that the cell phone in Petitioner's possession met certain requirements of the Petitioner's conditions under the Sex Offender Registration Act. In relevant part, Petitioner's Parole Officer testified as follows:
“During that course of the [arrival] report [on November 16, 2017] we discussed communication devices, in particular cell phones. I advised him of the criteria for the possession of a cell phone. Where to obtain an appropriate cell phone. Due to his status as a sex offender he cannot possess a cell phone that possesses the Internet. Internet video or photo capable. I instructed him that if he were to obtain a cell phone that he would have to notify me immediately by phone that he was in possession of a cell phone. At that time I would take down the name of the cell phone. And during the normal course of being a sex offender Parole Officer, at that time I would review the name of the cell phone online to determine whether or not that cell phone would be appropriate to hold onto temporarily until I could review it in person. This particular condition was also re-reviewed on 11/22 during an office report at the South Fallsburg 2 report station. During the court of that report he had indicated that he has a relative that was employed with Verizon and that he may be getting a cell phone but he wasn't sure if he wanted to obtain a cell phone at that time. I then reminded him that if he takes possession of a cell phone that I need to be notified immediately. The reason why the notification immediately is important, he is a level three registered sex offender. He has requirements under the Sex Offender Registration Act. So I need to know what type of cell phone he's in possession of to make sure that he's in compliance with the requirements of that Act. And that any appropriate cell phone Internet provider is registered with the Sullivan County Sheriff Department and with the Sex Offender Registry.”
[Transcript of Petitioner's Preliminary Hearing on December 13, 2017, Page 9, Line 9 through Page 11, Line 8]
Petitioner disputes that his Parole Officer gave him this oral condition to immediately notify her upon his obtaining of a cell phone. Petitioner contends that his Parole Officer gave him permission to obtain a cell phone. Petitioner further states that he intended to inform his Parole Officer that he obtained a cell phone at their December 8, 2017 meeting.
The following facts are undisputed by either party: 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 only proceeded 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 for oral argument on February 6, 2018. The Petitioner, through his counsel, 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 Petitioner's liberty. Lastly, Petitioner argues that he has a statutory entitlement to be admitted to bail and requests such admittance pending a final determination of his Writ.
Harold L. Smith, Sullivan County Jail Administrator, duly authorized to respond on behalf of Respondent Michael A. Schiff, Sheriff of Sullivan County, filed a Return on Writ of Habeas Corpus acknowledging that Petitioner was being detained in Sullivan County Jail by virtue of authority contained in a warrant pursuant to Executive Law § 259–i(3)(a)(i) from the New York State Department of Corrections and Community Supervision that required the Respondent to detain the Petitioner. As such, Respondent Michael A. Schiff, Sheriff of Sullivan County, has no discretion and can make no determination regarding the merits of the charges against Petitioner and defers to the other Respondents—the New York State Department of Corrections and Community Supervision and/or the Attorney General—to respond to the specific allegations made by Petitioner.
Heather R. Rubenstein, Esq., of counsel to Eric T. Schneiderman, Esq., Attorney General of the State of New York, attorney for Respondents Anthony Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision, and attorney for Tina M. Stanford, Chairwoman of the New York State Board of Parole (hereinafter the “Respondents”), also filed an Answer and Return upon Petitioner's Writ. Respondents argued that the evidence presented at the Preliminary Parole Violation Hearing established probable cause that the Petitioner violated the conditions of his parole. Specifically, Respondents argue that it is clear from the testimony of Petitioner's Parole Officer that there was an oral condition on Petitioner that he must immediately contact his Parole Officer once he obtained a cell phone. The fact that Petitioner possessed a cell phone for almost two (2) days prior to his Parole Officer's unannounced visit and never notified his Parole Officer that he had a cell phone is a clear violation of this oral condition. With regard to Petitioner's request for admittance to bail, the Respondents argued that Petitioner was not constitutionally entitled to bail and that Criminal Procedure Law did not apply to bail revocation hearings.
Petitioner then argued for admittance to bail pending the Court's final determination pending a final determination of Petitioner's request for a Writ of Habeas Corpus. The Respondents opposed Petitioner's application for bail and requested remand without bail. This Court granted Petitioner admittance to bail pending a final determination of Petitioner's Writ in a separate Decision and Order.
CONCLUSIONS OF LAW
Challenges to the administrative process of parole revocation should initially be brought by administrative appeal. People ex rel. Gaito v. Couture, 269 A.D.2d 709 (3d Dept 2000). It is in rare circumstances that a court will allow for departure from “the general rule requiring exhaustion of administrative remedies.” Id, [internal citations omitted]. Habeas corpus relief is not appropriate in cases in which the alleged procedural error or questions of fact regarding procedural issues can be addressed by the administrative process. The People of the State of New York ex rel. King Davis v. New York State Board of Parole, 263 A.D.2d 706 (3d Dept 1999). “Administrative remedies must be exhausted prior to judicial review of any alleged error in the parole revocation process.” The People of the State of New York ex rel. Timothy C. Webster v. Travis, 277 A.D.2d 546 (3d Dept 2000).
In the instant matter before the Court, Petitioner's dispute concerns whether or not DOCCS and the Division of Parole properly followed its own procedures and contends evidentiary errors were committed. This Court cannot review Petitioner's claims, as Petitioner has yet to exhaust his administrative remedies. 9 NYCRR § 8006.1. The proper forum in which to raise objections to the parole revocation procedure or issues regarding the validity of documents in connection with that process is initially at the administrative level—at the final revocation hearing and then through administrative appeal. Barkley, supra. The issues raised by Petitioner are questions of fact that should initially be addressed at the administrative level. King Davis, supra. See also, People ex rel. Gibbs v. New York Board of Parole et al., 251 A.D.2d 718 (3d Dept 1998).This Court finds that Petitioner's constitutional claims do not rise to a level requiring departure from the requirement that administrative remedies be exhausted. Gaito, supra; Barkley, supra; Webster, supra; Gibbs, supra.
Respondent Michael A. Schiff, Sheriff of Sullivan County, was and remains under a lawful duty to temporarily detain Petitioner pursuant to a facially valid warrant. Executive Law § 259–i(3)(a)(i). Respondent Michael A. Schiff, Sheriff of Sullivan County, has no authority to determine the validity of the warrant, the notice, or any documentation or procedure associated with the parole revocation process.
It should be noted that even if this Court considered Petitioner's arguments regarding the lack of probable cause to establish a violation of parole, same would be without merit. It is well settled that a preliminary parole revocation hearing is summary and informal, and only a minimal inquiry is necessary to determine whether there is probable cause or reasonable grounds to believe that the parolee has committed acts constituting a violation of any of his or her parole conditions. 9 NYCRR 8005.7; McCants v. Travis, 291 A.D.2d 594 (3d Dept 2002); People ex rel. Korn ex rel. Jones v. New York State Div. Of Parole, 274 A.D.2d 439 (2d Dept 2000). Nothing in the record before this Court evidences that the Hearing Officer lacked any probable cause or reasonable grounds in finding that the Petitioner violated a condition of his parole based upon the credible testimony of the Petitioner's Parole Officer and the evidence presented at Petitioner's Preliminary Parole Violation hearing.
Based on the foregoing, it is hereby
ORDERED that Petitioner's application for Writ of Habeas Corpus is denied in its entirety; and it is further
ORDERED that Petitioner's admittance to bail is revoked, and Petitioner is remanded to the Sullivan County Jail pending his final revocation hearing and administrative appeal, if any. This shall constitute the Decision and Order of this Court.
1. On November 17, 1988, Petitioner brandished a knife and forcibly entered the home of a woman, who he then slashed, handcuffed her wrists, and raped her. Petitioner also searched the victim's home for cash and jewelry while she remained bound. On December 12, 1990, Petitioner forcibly entered another woman's home while brandishing a shotgun and proceeded to handcuff and rape his second victim, removing the victim's rings from her fingers before leaving the residence.
2. South Fallsburg is in Sullivan County, New York, where Petitioner resides in a house owned by his stepfather.
Frank J. LaBuda, J.
Docket No: 0073–2018
Decided: April 02, 2018
Court: County Court, New York.
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