Citation Numbers: 186 Misc. 2d 41, 715 NYS2d 616
Judges: Mogulescu
Filed Date: 10/10/2000
Status: Precedential
Modified Date: 2/5/2022
The petitioner moved pro se by writ of habeas corpus for an order vacating his parole warrant and reinstating him to parole supervision based upon his claim that he did not receive a final revocation hearing within 90 days from the waiver of his preliminary hearing. The petitioner’s writ was held in abeyance pending the conclusion of a hearing in order to resolve the factual issue as to whether the petitioner knowingly and voluntarily consented to the postponement of his final parole hearing beyond the 90 days required by statute. Specifically at issue is the placement of petitioner’s parole matter on a “K calendar” which is an open-ended control calendar that allows a parolee to resolve any pending felony charges prior to having a final parole hearing. According to respondents, upon consent, a parolee’s final pending felony hearing is adjourned to this calendar and remains there to December 25 of any given year until one of three conditions occur: the parolee requests that the parole matter be recalendared; the new charge is disposed of with less than a felony conviction; or the parolee is convicted of the new felony charge and is returned to State prison.
On August 3, 2000, a hearing was held before this court.
Petitioner testified that on October 28, 1999, he appeared at Rikers Island Judicial Center for his parole hearing. In addition to the presiding Administrative Law Judge (ALJ), present
In contrast to the testimony of petitioner, Parole Revocation Specialist William Henderson stated that it was standard procedure for the Administrative Law Judge to explain the workings of the K calendar to a parolee, and that this was done in the instant matter. Henderson also recalled that the presiding ALJ informed petitioner that he could contact Henderson or the “division” when he wanted to come off the K calendar. Henderson testified that, as a matter of course, he advises parolees that placement on the K calendar would result in a parolee being taken off the regular calendar “until [parolee’s] court case is disposed of or if [parolee’s] attorney [sic] would like to be placed back on the regular calendar prior to [parolee’s] indictment being completed.” According to Henderson these aforementioned advisories always take place off the record rather than being recorded on audio or video tape because to so inform each parolee on the record “would use more * * * tape time.”
Henderson also testified that, as a matter of course and in this particular instance, when a parolee requests to be placed on the K calendar he uses a 9015 Form
On January 11, 2000, petitioner’s Kings County felony indictment was dismissed (Downing, J.), and petitioner was returned to Rikers Island. Although petitioner denies ever calling Henderson, Henderson testified that he next spoke to petitioner sometime in May when he received a telephone call from him requesting that his parole matter be restored to the regular calendar. On June 1, 2000, after he filed the instant writ, petitioner was returned to Rikers Island Judicial Center for his final hearing.
- Under these facts, it is clear to this court that the Division of Parole has failed to establish adequately that petitioner’s consent to being placed on the K calendar was a knowing and voluntary waiver of his right to a timely final parole hearing. Even accepting as true Henderson’s testimony, in this case there was no conversation on the record which reflects that petitioner was fully informed of the ramifications of the placement of his case onto the fictitious K calendar and that, as a result, the case would remain there in perpetuity until
Furthermore, there is simply no reason why a contemporaneous record is not made of the proceeding. Henderson’s testimony that a taped record is not made in order to save tape staggers the mind. The Division of Parole would be well advised to implement whatever procedures are necessary to insure that a record is made of the proceeding in which a parolee waives his statutory right to a speedy hearing. The continued failure to insure that such a record is made will only serve to give rise to the inference that the Division of Parole does not care about the consequences which may well flow from the lack of a record.
However, despite the fact that respondents have failed to establish that petitioner’s participation in the K calendar was a knowing and voluntary waiver of his right to a timely final parole hearing, any claims the petitioner may now have regarding the timeliness of his final parole hearing are rendered moot by the revocation of his parole as a result of his plea of guilty. (See, People ex rel. Chavis v McCoy, 236 AD2d 892 [4th Dept 1997] [petitioner’s claims regarding his preliminary hearing are subsumed by the revocation of his parole following his guilty plea]; Matter of Collins v Rodriguez, 138 AD2d 809 [3d
. Letter by Steven H. Philbrick, Chief Administrative Law Judge, to Valerie Singleton, dated February 17, 2000. (See, respondents’ exhibit H, affirmation in opposition.)
. Petitioner elected to have the representation of counsel prior to the commencement of the hearing.
. Introduced as respondent’s A-l.
. Petitioner denied seeing or being given a copy of form 9015.
. Petitioner stated that at the time Henderson claims to have received a telephone call from him requesting that he be placed back on the calendar he was in punitive segregation and was only allowed one telephone call a week; petitioner further testified that this phone call would be to his father.
. Petitioner stated that Henderson informed him that if he was not interested in the Willard Program that he would receive a six-month sentence as a parole violation.
. Petitioner argues that a letter from Terrence X. Tracy, Counsel to the Division of Parole, to Valerie Singleton, dated May 17, 2000 (exhibit B, respondents’ supplemental affirmation) lends support to a finding that claims are not waived despite a subsequent guilty plea. That letter requests that the Assistant Attorney General not assert a waiver defense where in habeas proceedings in Supreme Court the parolee enters a plea of guilty at the arraignment part with an objection noted on the record regarding any procedural infirmity. This court is not, however, persuaded by this correspondence to find that petitioner’s claim herein survives his guilty plea. As is pointed out by respondents, the letter addresses those situations where a parolee pleads guilty at arraignment, which was not here the case. Further, even were this court to find this letter applicable to these circumstances, it applies only in those instances where a parolee expressly preserves his habeas claim on the record prior to entering a plea. Here, at the time of the plea there was no mention of parolee’s pending writ or the matter being litigated therein. (See, exhibit A, respondents’ supplemental affirmation.) Therefore the claim was unpreserved for review.