People of the State of New York ex rel. Japheth Baker, Esq., on behalf of Daniel Kelly, Petitioner, v. LYNELLE MAGINLEY LIDDIE (2026)

Petitioner Daniel Kelly was detained by respondent Department of Corrections and Community Supervision (DOCCS) for allegedly violating certain conditions of release during his community supervision. Petitioner filed a writ of habeas corpus to challenge the legality of his detention. This court previously ordered petitioner's release based on other grounds in the petition. In the remaining ground of the petition, petitioner argues that he was not given proper notice of certain violation charges and that the parole warrant was unlawfully issued. For the reasons stated herein, the petition is GRANTED to the extent of petitioner's release as previously ordered, and the writ is SUSTAINED to that extent. The remaining branch is converted to a proceeding under CPLR article 78 and DENIED, and that portion of the proceeding is DISMISSED.

A parole officer made a home visit to petitioner's approved residence on November 3, 2025, after receiving a strap violation for petitioner's assigned GPS device. Petitioner was not present. A parole officer later called petitioner, and petitioner confirmed that he had removed the GPS device. DOCCS issued a parole warrant that same day.

DOCCS issued supplementary violation of release report No. 1, which included charges 19 through 34. Those charges alleged multiple GPS-related violations of rules 8, 12, and 13.

Charges 19 through 25 involve rule 8 violations for violating a provision of law to which petitioner is subject, which carries a penalty of imprisonment. Charge 19 alleged that petitioner removed, tampered with, or allowed tampering with his GPS device, conduct described as consistent with the crime of criminal tampering in the third degree (Penal Law § 145.14). Charge 20 alleged that petitioner removed his GPS device, conduct described as consistent with the offense of misapplication of property (Penal Law § 165.00). Charge 21 alleged that petitioner cut his GPS device without his parole officer's permission, conduct described as consistent with the crime of criminal mischief in the fourth degree (Penal Law § 145.00). Charge 22 alleged that petitioner cut his GPS device, causing damage to the strap, clip, and device conduct described as consistent with the offense of criminal mischief in the fourth degree (Penal Law § 145.00). Charge 23 alleged that petitioner removed his GPS device, rendering it irretrievable, conduct described as consistent with the crime of petit larceny (Penal Law § 155.25). Charge 24 alleged that petitioner failed to charge his GPS device, conduct described as consistent with the offense of obstructing governmental administration in the second degree (Penal Law § 195.05). Charge 25 alleged that petitioner removed, damaged, tampered with, or otherwise inhibited his GPS device to prevent DOCCS from monitoring his location, conduct described as consistent with the crime of obstructing governmental administration in the second degree (Penal Law § 195.05). Petitioner now challenges the issuance of the parole warrant.

As the court has already granted petitioner's release pursuant to the writ of habeas corpus, CPLR 7010 (a) precludes further relief under habeas corpus. However, the court retains authority to address unresolved claims by converting the remaining branch of the petition into a proceeding under CPLR article 78, as authorized by CPLR 103 (c).

That claim may proceed under article 78 only if it rests on a final and binding administrative determination (CPLR 7801 [1]). A determination is considered final and binding when the agency has "reached a definitive position on the issue that inflicts actual, concrete injury" and the injury cannot be prevented or significantly ameliorated by further administrative action (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of NY, 5 NY3d 30, 34 [2005]). Here, DOCCS took such a definitive position when it decided that there were grounds to issue a parole warrant. That determination became final and binding upon execution of the warrant.

Petitioner's claim centers on whether DOCCS issued the warrant "without or in excess of jurisdiction" (CPLR 7803 [2]) or "in violation of lawful procedure" (CPLR 7803 [3]). By statute, DOCCS may issue a warrant only in certain circumstances (Executive Law § 259-i [3] [a] [i]). Accordingly, this court converts the claim challenging the issuance of the underlying parole warrant as unlawful into a proceeding brought under CPLR article 78 (CPLR 103 [c]).

Petitioner first argues that DOCCS failed to allege nontechnical violations for charges 19 through 25 because the charges did not delineate every element of the Penal Law offenses referenced in the violation report. Although a notice of violation must "state what conditions of community supervision are alleged to have been violated, and in what manner" (Executive Law § 259-i [3] [c] [iii]), a charged violation does not need to be pled with the precision of a criminal pleading (Matter of Gonzales v New York State Bd. of Parole, 193 AD2d 356, 356-357 [1st Dept 1993]). However, a charge treated as a non-technical violation must nevertheless allege conduct constituting a misdemeanor or felony (Executive Law § 259 [7]). Petitioner could plausibly contend that omitting elements of referenced offenses may have hindered his understanding of the allegations, thereby limiting his ability to prepare a defense. Nonetheless, established precedent holds that a notice defect does not warrant vacatur absent prejudice to the releasee's ability to prepare or present a defense (see People ex rel. Washington v New York State Div. of Parole, 279 AD2d 379, 380 [1st Dept 2001]). To the extent petitioner identifies a notice defect in the wording of the charges, relief is unavailable absent a showing that such defect somehow impaired petitioner's ability to defend against those charges (id.). Petitioner has not made such a showing. Indeed, each of the relevant charges put petitioner on notice of the behavior or conduct that allegedly violated specific conditions of his community supervision and described the manner of the violation.

Petitioner next argues that DOCCS could not issue a warrant without first serving a notice of violation. Under Executive Law § 259-i [3] [a] [i], the distinction between technical and nontechnical violations is significant: a technical violation generally refers to conduct that breaches the administrative conditions of supervision, such as missing appointments or failing to comply with routine procedures, whereas a nontechnical violation involves conduct that constitutes a new criminal offense or behavior that poses a significant risk to public safety. For a technical violation, DOCCS may issue a warrant only after the releasee fails to appear in response to a notice of violation and then fails to appear voluntarily within 48 hours. In contrast, for a nontechnical violation, DOCCS may initiate the parole revocation procedure by either the issuance of a notice of violation or a parole warrant. Because the warrant in this case was supported by nontechnical conduct, DOCCS was not required to serve a notice of violation before issuing the warrant. The warrant was thus properly issued.

Accordingly, it is hereby

ORDERED and ADJUDGED that, as outlined in this court's order, dated November 19, 2025, the petition for a writ of habeas corpus is GRANTED to the extent of petitioner's release from custody pursuant to parole warrant No. 862286, and the writ is SUSTAINED to that extent; it is further

ORDERED that the branch of the petition challenging the issuance of parole warrant No. 862286 is converted to a proceeding under CPLR article 78; and it is further

ORDERED and ADJUDGED that, as converted, that branch of the petition challenging the issuance of the parole warrant is DENIED, and that portion of the proceeding is DISMISSED.

Dated: July 14, 2026

Bronx, New York

HON. VERENA C. POWELL, A.J.S.C.

Verena C. Powell, J.