Opinion
2088/10.
Decided April 26, 2010.
STATE OF NEW YORK, OFFICE OF THE ATTORNEY GENERAL, POUGHKEEPSIE, NY.
ATTN: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL, LAW OFFICE OF TOM TERRIZZI, BUFFALO, NY.
The Relator was convicted of Criminal Contempt in the First Degree (Penal Law § 215.51 [b][2]) and was sentenced to one and one-third to four years in State Prison on June 9, 2005. In addition to his conviction of Criminal Contempt First Degree, Defendant was also convicted of three counts of Criminal Contempt Second Degree (PL § 215.50), Stalking in the Third Degree (PL § 120.50) and Menacing in the Second Degree (PL § 120.14 (2). On the latter five charges, which are misdemeanor charges, the Defendant was sentenced to one year in the Orange County Correctional Facility to run concurrently with his conviction for Criminal Contempt in the First Degree. Additionally, on the same date, June 9, 2005, the Defendant was also convicted of Bail Jumping in the Second Degree (PL § 215.56) relating to his failure to appear for sentencing on the Criminal Contempt case and was sentenced to a minimum of one to a maximum of three years in State Prison, this sentence to run consecutively with the sentence on Criminal Contempt charge and the related charges.
On October 23, 2009, the Relator received a certificate of release to parole supervision and was permitted to move to 300 Sheldon Street in Hartford, Connecticut. Shortly thereafter, the Relator was charged with six violations of his parole terms and conditions.
The Relator was taken into custody on the parole violation on November 20, 2009. The Relator retained counsel on November 24, 2009. On November 25, 2009, the Relator was served with the violation of release report listing the six charges against the Relator. On January 8, 2010, the Connecticut Parole Board found probable cause that the Relator committed five out of the six charges. The Relator was ultimately returned to the State of New York.
The Relator complains that his constitutional and statutory rights to a prompt hearing were denied. The Relator cites USC Amend. XIV (New York Const., Article 1, Section 6; Morrissey v. Brewer, 408 U.S. 471, 482 (1972); People ex rel Menechino v. Warden, 27 NY2d 376, 381 (1971). For the reasons stated hereinafter, the Relator's request for relief is denied and the petition is dismissed. After a hearing, the Relator was remanded for a period of three months and time served.
In several cases, both Appellate and lower courts have held that the power of the receiving state, in this case Connecticut, to conduct a hearing is delegated to it pursuant to the Compact for adult supervision hereinafter "Compact" (Interstate Compact, NY Exec. Law § 259 et seq.; People ex rel Ortiz v. Johnson ( 122 Misc 2d 816, Sup. Ct. 1984). As stated in Ortiz,
[T]he time limits imposed under [the Compact] of the Executive Law are clearly procedural in nature. When there is a conflict between the laws of one State and those of another, the general rule has always been that matters of procedure, or *** remedies and remedial rights, are governed by the *** place where the remedy is sought', or to put it more succinctly, procedural issues are governed by the laws of the forum'. *** In dealing with parole hearings, this court can only conclude that such a hearing is by its very nature procedural. In addition, the basic statute dealing with out-of-State parole supervision, [the compact] specifically states in subdivision (2) [of section 259-m]: that each receiving state will assume the duties of visitation and of supervision over probationers or parolees of any sending state and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees". Ortiz, Id at 818 (emphasis supplied) (citations omitted).
In People ex rel Bell v. Santor ( 21 AD3d 1192 [3d Dept. 2005]), the Petitioner was released on parole and was allowed to move to South Carolina which supervised the Petitioner's parole pursuant to the Interstate Compact for Out-of-State Parole Supervision. The Petitioner was thereafter taken into custody in South Carolina pursuant to a New York parole violation warrant and a preliminary parole revocation hearing was held. The Petitioner alleged that the South Carolina authorities "failed to provide him with timely notice of the violation and failed to timely hold a preliminary parole revocation hearing." Id. at 1192. The Court held that the "petitioner's challenge of the preliminary parole revocation hearing was rendered moot by the final parole revocation determination". Bell at 1193. The Bell court went on to hold that "when an out-of-State parolee violates the conditions of his or her parole in the receiving state, there are no time periods specified for holding a preliminary revocation hearing or for providing the parolee notice of such hearing". Bell at 1193, (citations omitted).
Likewise, People ex rel McDaniel v. Berbary ( 35 AD3d 1172 , 4th Dept 2006), citing Bell v. Santor, the Appellate Division held the contention that the hearing was not held timely in the receiving state of California, "[had] been rendered moot by the determination revoking Petitioner's parole following the final parole revocation hearing. At 1173. In People ex rel McIver v. Murray ( 275 AD2d 1009, 4th Dept 2000), it was held that New York Executive Law on the Compact does not specify a time limitation for out-of-state parole revocation hearings,
Executive Law § 259-o, which sets forth the procedures to be used when an out-of-state parolee is violated on his release in the receiving state, does not specify any time period for giving notice of, or for holding, a preliminary parole violation hearing in the receiving state. McIver at 1010, citations omitted.
Certain of the cases cited by the Relator are not entirely relevant to the cases at bar. In People ex rel Menechino v. Warden ( 27 NY2d 376, 381 (1971)), centers upon the parolee's denial of his constitutional right to counsel at his parole revocation hearing. Likewise, Matter of Beattie v. New York State Board of Parole ( 39 NY2d 445, 1976), concerned an alleged denial of a timely final revocation hearing. Both cases concerned parolees who were released on parole in New York State and not to another Compact State.
The argument advanced by counsel at the hearing in this matter was that New York has a responsibility to "police" the procedures utilized by the State of Connecticut. Clearly the Compact specifies no such requirement on the part of the State of New York and must be rejected. In fact, it is clear from several of the cases cited above that there are no such requirements imposed by the Executive Law § 259 et. seq. which require any procedures other than those utilized by the receiving state, in this case the State of Connecticut in determining its own parole violations. McIver, supra at 588; Ortiz, supra at 818-819.
The relief requested in the Relator's Petition for a Writ of Habeas Corpus is denied and the proceeding is dismissed.
This decision shall constitute a Judgment and Order of this Court.