A New York Criminal Lawyer said the petitioner, by his attorney, has filed a writ of habeas corpus seeking vacatur of a parole warrant and release to parole supervision. Petitioner alleges that his right to due process and fundamental fairness was denied when the Division of Parole, having failed to establish probable cause at a preliminary hearing, filed a second parole warrant containing a “new” charge arising out of the same underlying incident as the initial charges that were not sustained.
A New York Criminal Lawyer said that Petitioner was convicted of assault in the second degree and criminal possession of a weapon in the third degree. He was sentenced to concurrent terms of 4 years and 1 1/3 to 4 years respectively. Petitioner was released to parole supervision on April 25, 2003.
Petitioner was arrested and charged with robbery and related offenses in Bronx County in April 2006. He was declared delinquent as of that date. The first five specifications related to the substantive allegations of petitioner’s new case.
A Nassau County Criminal Lawyer said that since the warrant was executed on April 26, 2006, the Division had 15 days or until May 11 to establish, at a preliminary hearing, probable cause that petitioner had violated a condition of his release in an important respect. The preliminary hearing was scheduled and adjourned two times. Both times the arresting officer failed to appear. Accordingly, on May 11, 2006, the warrant was dismissed.
Petitioner, however, was not restored to parole, because on that same date, the Division filed a second warrant. The second warrant contained only one charge which arose out of petitioner’s arrest in Bronx County for the exact same charges that were the subject of the specifications contained in the first warrant that had just been dismissed.
The filing of this “new” charge had the effect of starting a new 15-day period for a preliminary hearing. The hearing was held and probable cause was found. Petitioner is awaiting his final hearing.
Petitioner argues that the facts underlying the sole charge in the second warrant were known to the Division at the time the first warrant was issued and that failure to include this charge in the first warrant violated his right to due process.
A Queens Criminal Lawyer said much of respondents’ opposition papers is devoted to the argument that the Division is under no obligation to execute a parole warrant within any specific time after learning of a violation. While this is undoubtedly true, it entirely misses the point of petitioner’s argument. Petitioner is not arguing that the Division waited an unreasonable time to file the violation.
While the court could find no reported cases on point, there are several unreported cases that support petitioner’s argument.
“Under the circumstances, the Division may not be afforded a second opportunity to substantiate a charge which the Division was clearly made aware of prior to the execution of the first parole warrant parole violation may not be held in abeyance until after the Division fails to obtain a finding of probable cause at the first preliminary hearing when there is evidence that the relevant facts were in its possession.”
In a case, a parolee was convicted of felony charges in Virginia and returned to New York on a parole warrant. The warrant was lifted administratively and the delinquency cancelled because the Division failed to serve notice of the parole violation charges in a timely fashion. Shortly thereafter, the Division lodged a second warrant, charging, among other things, that the parolee left New York State without his parole officer’s permission.
In the instant case, the facts are even more compelling, since the charge contained in the second warrant was simply a technical charge arising out of the same incident underlying the charges contained in the first warrant. Petitioner committed a new crime, outside of Westchester County, at an hour that was past his curfew. All but the “out of county without permission” charge appeared in the first warrant. This charge should have been included as well.
Respondents cite two cases in support of the proposition that not all charges need be included in a single warrant, but these cases are readily distinguishable. Noting that the new charges could not have been included in the original warrant, the court held that the Division was entitled to a reasonable time to investigate the new charges and was under no obligation to add them to the existing warrant.
“The [D]ivison of Parole is not required to bring new charges within a specified time after the acts which form the basis of those charges occur. Similarly they are not required to wait and include all potential charges in one violation if it is not possible. In this case, there was no possible way to include the new charges in the first warrant since the new drug use charges could not be ascertained scientifically until after the first warrant’s issuance.”
First, in neither of these cases did the second charge arise out of the same incident as the first charge. Second, and more importantly, in each of these cases the new charge was not known to the Division at the time the first charges were filed.
Respondents claim that petitioner’s parole officer did not bring the initial charges because she at first believed that the crime had been committed in White Plains rather than on White Plains Road, and needed time to “investigate.” Respondents have submitted a somewhat conclusory affidavit from the parole officer stating that at first she believed the incident had occurred in White Plains.
The Court cannot make a finding as to whether or not the officer in fact believed that the incident had occurred in White Plains. If, however, the parole officer in fact believed that the incident had occurred in White Plains, it could only be because she inexcusably ignored facts that would indicate to any reasonably prudent person that the incident occurred in Bronx County.
The Executive Law permits a parolee to be held on a parole warrant, but mandates that a preliminary hearing be held within 15 days. The strict time limits in the Executive Law ensure that a parolee is not incarcerated for more than a short time without a determination of probable cause by an independent hearing officer. Were the Division permitted without cause to take a single incident involving multiple violations and file them one at a time rather than all together, it would permit a near indefinite extension of the 15-day period.
In sum, where the Division has a legitimate reason for not including a specification in an initial warrant, even if it arises out of the same incident, there is no rule which requires that all specifications be included at once.
Accordingly, petitioner’s writ of habeas corpus is sustained, the warrant is vacated and petitioner is ordered restored to parole status.
Possession of illegal drugs is punishable under the law. In spite of this, there people who still engage in this activity. Here in Stephen Bilkis and Associates, we have Bronx County Drug Possession lawyers, who will prosecute these offenders. For a reliable and worthy advice, our Bronx County Criminal attorneys are here to help and serve you.