Government of United States ex rel. Shaban v. Essen

• Decision Date: 26 December 1974
• Citation: 386 F. Supp. 1042
• Parties: GOVERNMENT OF the UNITED STATES ex rel. Robert SHABAN v. Stanley ESSEN, Director of the Brooklyn Rehabilitation Center New York State Drug Abuse Control Commission.
• Court: U.S. District Court — Eastern District of New York

386 F. Supp. 1042

GOVERNMENT OF the UNITED STATES ex rel. Robert SHABAN v. Stanley ESSEN, Director of the Brooklyn Rehabilitation Center New York State Drug Abuse Control Commission.

United States District Court, E. D. New York.

December 26, 1974.

Joel H. Brettschneider, Brooklyn, N. Y., for plaintiff.

Louis J. Lefkowitz, Atty. Gen., of N. Y. by Burton Herman, Asst. Atty. Gen., New York City, for defendant.

Opinion

PLATT, District Judge.

Petitioner seeks a writ of habeas corpus to deliver him from the custody of the Brooklyn Rehabilitation Center on the ground that the revocation of his "after-care" status and imposition of "resident-status" was in violation of his constitutional rights guaranteed by the Fourteenth Amendment to the United States Constitution.

Specifically petitioner claims that such revocation and imposition were "without (1) written notice of the claimed violation; (2) disclosure of evidence against him; (3) opportunity to be heard and present witnesses (4) right to confront and cross-examine witnesses; (5) a neutral and detached hearing body; and (6) a written statement of the fact finder's determination."

The following appear to be the facts from petitioner's papers and the testimony taken at the hearing on December 24, 1974:

On July 25, 1972, the petitioner, upon the request of his parents, was adjudged an addict (now known as a drug dependent person) under the New York Mental Hygiene Law and was committed in a civil proceeding in the Supreme Court, Kings County (Liebowitz, J.).

Thereafter the petitioner was placed in custody in the then NACC facility at Arthur Kill, Staten Island, and he remained there until December 1972 at which time he was released by NACC to "after-care" or outpatient status.

Petitioner's original certification of addiction was made by Dr. C. S. Rubenstein, a NACC doctor.

On March 28, 1973, petitioner pled guilty to a burglary charge in Part IAA of the Criminal Term of the Supreme Court, Kings County (Epstein, J.) and was directed to be re-examined at the NACC facility in Brooklyn. On April 2, 1973, the same Dr. C. S. Rubenstein certified the petitioner to be a non-addict. Thereafter Mr. Justice Epstein sentenced the petitioner to a five year probationary term.

On November 30, 1974, petitioner was arrested on certain robbery charges which, on December 3, 1974, were all dismissed for lack of identification and evidence.

Upon the dismissal of the charges a demand was made for the release of the petitioner but such request was denied on the ground that there was a NACC (now DACC) warrant lodged against the petitioner. A writ of habeas corpus was sought from the Supreme Court, Kings County, on December 4, 1974, but was denied on that date by Mr. Justice Oliver D. Williams.

An order to show cause for an immediate hearing on the appeal and for leave to argue on the original record and documents was opposed by the respondent and denied by the Appellate Division, Second Department, on December 11, 1974, and petitioner was informed that the Appellate Division would be in recess from Friday, December 13, 1974 and that his appeal could not be heard until some time during February of 1975.

Petitioner claims that the revocation of his after-care and the imposition of his in-patient status is for a period of 90 days and that by the time his appeal comes on to be heard in the Appellate Division almost all of his custody period will have taken place. Accordingly, petitioner maintains that he has exhausted his remedies in the State courts and he is therefore entitled to petition for the instant writ.

The statute pursuant to which the revocation of petitioner's after-care status and the imposition of his resident-status was made is Section 81.30 of the New York State Mental Hygiene Law, McKinney's Consol.Laws, c. 27, which provides in part that:

"* * * The commission shall establish regulations and standards for release and aftercare placement of drug dependent persons. The commission shall have power to order any drug dependent person from aftercare supervision to inpatient treatment."

Concededly the statute does not provide for either a written notice of the claimed violation nor a hearing prior to the revocation and imposition and it was conceded at the hearing by Mr. Sullivan, one of respondent's witnesses from DACC, that no such notice or hearing were available or given to petitioner prior to such revocation and imposition and that petitioner did not receive any of the same.

In Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972), the Supreme Court held in the case of a revocation of parole that due process required the following:

(i) written notice of the claimed violation;

(ii) disclosure of the evidence against the alleged violator;

(iii) an opportunity to be heard and to present witnesses and documentary evidence;

(iv) the right to confront and cross-examine adverse witnesses;

(v) a neutral and detached hearing body; and

(vi) a written statement by the factfinders as to the evidence relied on and the reasons for revocation.

The Appellate Division, Fourth Department, in a unanimous decision in Ball v. Jones, 43 A.D.2d 281, 351 N.Y.S. 2d 199 (1974), said the foregoing minimum requirements were applicable to the revocation of the after-care status and the imposition of resident status in the case of a formerly certified narcotic addict such as the petitioner in the case at bar. While such decision is on appeal to the Court of Appeals and hence may not be regarded as a final statement on the law in this State, (see also CPLR §...