PEOPLE JOHNSON v. RUSSI

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, ex rel. Marcus JOHNSON, Petitioner-Appellant, v. Raul RUSSI, etc., et al., Respondents-Respondents.

Decided: February 18, 1999

ROSENBERGER, J.P., NARDELLI, TOM and ANDRIAS, JJ. Vaughn-Michael H. Cordes, for Petitioner-Appellant. Mary Lynn Nicolas, for Respondents-Respondents.

Order, Supreme Court, New York County (John Bradley, J.), entered on or about December 30, 1997, which dismissed the petition for a writ of habeas corpus, without prejudice to renewal after a final parole revocation hearing, and which brings up for review an order of the same court and Justice, entered on or about March 27, 1998, which, upon reargument, adhered to the court's prior determination dismissing the petition, unanimously affirmed, without costs.

 Petitioner's claim that he was improperly denied a preliminary parole revocation hearing is without merit.   Petitioner expressly waived his right to a preliminary hearing and, in any event, was not entitled to one since he “[h]ad been convicted of a new crime committed while under parole, conditional release, or post-release supervision” (Executive Law § 259-i[3][c][i];  People ex rel. Courtney v. New York State Div. of Parole, 208 A.D.2d 352, 616 N.Y.S.2d 740, lv. denied 84 N.Y.2d 811, 622 N.Y.S.2d 913, 647 N.E.2d 119).

 Petitioner's further contention that the 1997 amendments to 9 NYCRR 8005.20(c), as applied to him, impose constitutionally impermissible ex post facto penalties, was properly rejected by Supreme Court as prematurely raised since at the time of Supreme Court's consideration there had been no final determination as to petitioner's parole status, and, accordingly, the applicability of the allegedly offensive amendments to petitioner had not yet been established.   In any event, petitioner's claims are without merit.   Contrary to petitioner's claim, the challenged regulations, setting forth penalties and dispositions for parole violators, are not “laws” within the meaning of the ex post facto clause, “but guideposts which assist the [Division of Parole] in exercising its discretion” in making parole assessments (see, Ruip v. United States, 555 F.2d 1331, 1335 (6th Cir.1977);  Inglese v. United States Parole Comm'n, 768 F.2d 932, 936 (7th Cir.1985)).   9 NYCRR 8005.20(c)(1) authorizes the Division to deviate from its prescribed time assessments if paragraph (4) of the subdivision regarding exceptional circumstances applies.   Further, the hearing officer retains discretion to recommend a disposition other than reincarceration, despite the dispositions set forth in subdivision (c), for reasons aside from those provided for under paragraph 4 (9 NYCRR 8005.20[c], [g] ).

 Petitioner's remaining claims that respondent failed to give his new attorney 14 days notice of the adjourned final revocation hearing date, pursuant to Executive Law § 259-i(3)(f)(iii), and failed to hold a final hearing within the 90-day time period, pursuant to Executive Law § 259-i(3)(f)(i), are unpreserved and, in any event, without merit.   Although petitioner was entitled to 14 days notice prior to the final revocation hearing, after he was assigned a new attorney, he was not entitled to an additional 14 days notice of the adjourned hearing date (People ex rel. Bush v. Stenzel, 195 A.D.2d 495, 600 N.Y.S.2d 119).   Further, the record reveals that while the final hearing was held beyond the 90-day statutory period, only 68 days of delay were chargeable to respondent, and thus petitioner was afforded a timely hearing (Executive Law § 259-i[3][f][i]).

MEMORANDUM DECISION.