PEOPLE McDANIEL v. BERBARY (2006)

Petitioner was released on parole in September 2003 and arrested in California on a parole violation warrant on March 19, 2004.   On March 23, 2004, the San Mateo County Sheriff's Office faxed a form to the New York State Division of Parole (Division) indicating that petitioner had waived extradition.   Petitioner was returned to New York and a preliminary parole revocation hearing was scheduled for April 5, 2004 and then adjourned to April 9, 2004.   After probable cause was found at the preliminary hearing, petitioner pleaded guilty at the final parole revocation hearing to violating the release conditions of his parole.   Petitioner commenced this habeas corpus proceeding contending that the preliminary parole revocation hearing was not held within 15 days of the execution of the warrant.   That contention has been rendered moot by the determination revoking petitioner's parole following the final parole revocation hearing (see People ex rel. Bell v. Santor, 21 A.D.3d 1192, 1193, 801 N.Y.S.2d 101;  People ex rel. McIver v. Murray, 275 A.D.2d 1009, 1010, 713 N.Y.S.2d 587).   In any event, petitioner's contention is without merit.   Where, as here, an alleged parole violator under parole supervision in New York State is detained in another state pursuant to a parole violation warrant, “the warrant will not be deemed to be executed until the alleged violator is detained exclusively on the basis of such warrant and the [Division] has received notification that the alleged violator (A) has formally waived extradition to this state or (B) has been ordered extradited to this state pursuant to a judicial determination” (Executive Law § 259-i[3][a] [iv] ).   The warrant here was not deemed executed until March 23, 2004, the day the Division received notification that petitioner had waived extradition (see People ex rel. Aquino v. New York State Bd. of Parole, 250 A.D.2d 789, 671 N.Y.S.2d 999).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: