IN RE: PEOPLE of the State of New York EX REL. David TOBIAS (2024)

Judgment, Supreme Court, Bronx County (Shari R. Michels, J.), entered on or about August 8, 2023, granting the petition for a writ of habeas corpus, and dismissing the June 16, 2023 parole revocation warrant for petitioner Frank Gilliard, unanimously affirmed, without costs.

The court properly concluded that the New York State Department of Corrections and Community Supervision (DOCCS) failed to satisfy its obligation to afford petitioner a timely preliminary hearing after the court ordered petitioner's detention on a parole warrant, issued for violations petitioner allegedly committed after receiving a preliminary hearing on a prior warrant (see Executive Law § 259–i[3][c][i][B]).  Those violations had yet to be resolved at a final revocation hearing.

Under the statute, when a court orders a parole releasee's detention for any violation of supervision conditions, DOCCS must afford the releasee a preliminary hearing within five days of either the issuance of the securing order or the execution of a warrant for the alleged violation (Executive Law § 259–i[3][c][i][B];  see People v. Annucci, ––– A.D.3d ––––, ––––, 208 N.Y.S.3d 146, 2024 N.Y. Slip Op. 01685, *3 [1st Dept. 2024]).  This provision is unambiguous and does not permit DOCCS to circumvent the preliminary hearing requirement when the executed warrant is issued for alleged violations committed after the releasee received a preliminary hearing in conjunction with prior violations that have not yet been presented at a final revocation hearing.  DOCCS’ contrary construction of the provision conflicts with the plain text of the statute and the spirit and purpose of the 2021 amendments to the statute, which were implemented to provide greater protections to releasees charged with parole violations (see e.g. Executive Law § 259–i[3][a][i], [v];  [c][i][A], [B]);  see also People v. Francis, 30 N.Y.3d 737, 746, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018] [“if an agency's interpretation runs counter to the clear wording of a statutory provision, it should not be accorded any weight” (internal quotation marks omitted)]).