People ex rel. Cook v. Leonardo

• Decision Date: 16 December 1999
• Parties: 1999 N.Y. Slip Op. 10,688 The PEOPLE of the State of New York ex rel. James COOK, Respondent, v. Arthur LEONARDO, as Superintendent of Greene Correctional Facility, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 137

701 N.Y.S.2d 137

1999 N.Y. Slip Op. 10,688

The PEOPLE of the State of New York ex rel. James COOK, Respondent, v. Arthur LEONARDO, as Superintendent of Greene Correctional Facility, et al., Appellants.

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

Dec. 16, 1999.

Eliot Spitzer, Attorney-General (Laura Etlinger of counsel), Albany, for appellants.

Janet Schwarzenegger, Assistant Public Defender, Catskill, for respondent.

Before: CARDONA, P.J., MERCURE, SPAIN, CARPINELLO and GRAFFEO, JJ.

SPAIN, J.

Appeal from a judgment of the Supreme Court (Connor, J.), entered October 30, 1998 in Greene County, which granted petitioner's application, in a proceeding pursuant to CPLR article 70, and discharged petitioner upon parole.

Upon petitioner's release to parole supervision in December 1996, rule 8 of his conditions of release required that he "not behave in such a manner as to violate the provisions of any law * * * which provide for a penalty of imprisonment". In December 1997, petitioner was arrested on a charge of criminal trespass in the second degree; as a result, he was charged in a violation of release report with violating rule 8 for being in a building without permission or authority. Additional parole violation charges were made in a supplementary violation of release report, including charge 2 which alleged a violation of rule 8 based upon petitioner's plea of guilty to criminal trespass in the second degree, a class A misdemeanor (see, Penal Law § 140.15). At the final parole revocation hearing, petitioner, who was represented by counsel, entered a plea of guilty to charge 2, resulting in a delinquent time assessment of 13 months. All other parole violation charges were withdrawn.

The misdemeanor conviction was subsequently vacated upon petitioner's CPL article 440 motion in exchange for his plea of guilty to trespass, a violation (see, Penal Law § 140.05). Based upon the reduction in his conviction from a misdemeanor to a violation, petitioner commenced this habeas corpus proceeding to obtain his discharge upon parole. Supreme Court granted the petition, concluding that a violation provided no jurisdictional basis for the revocation of parole. Respondents appeal.

Parole can be revoked upon a finding that one or more conditions of release were violated in an important respect (Executive Law § 259-i[f] [x] ). Rule 8 of petitioner's conditions of release proscribes conduct that violates the provision of any law which could subject petitioner to imprisonment--and does not merely proscribe conduct which constitutes a crime or results in a criminal conviction--and a definite prison term not to exceed 15 days could be imposed for a violation conviction (see, Penal Law § 70.15 ). Accordingly, Supreme Court erred in concluding that the change in petitioner's conviction from a misdemeanor to a violation divested respondent State Division of Parole of a jurisdictional basis for revocation of parole.

Petitioner contends that the technical violation is too trivial to establish that he violated rule 8 in an important respect (see, Executive Law § 259-i[f][x] ). Respondents contend that this habeas corpus petition should be dismissed due to petitioner's failure to exhaust available...