People ex rel. Fortunato v. Warden, Ga. Motchan Det. Ctr.
| Decision Date | 08 May 2015 |
| Docket Number | 250019-14 |
| Parties | The PEOPLE of the State of New York ex rel. Virgilio FORTUNATO, Warrant No. 667401 B & C # 300–13–00624, NYSID # 06266266Y, Petitioner, v. WARDEN, GEORGE MOTCHAN DETENTION CENTER, and New York State Department of Corrections and Community Supervision, Respondents. |
| Court | New York Supreme Court |
Elon Harpaz, Esq., Legal Aid Society, New York, for the petitioner.
David Cheng, Assistant Attorney General, New York, counsel for the respondent.
By writ of habeas corpus submitted February 18, 2015, petitioner moved for an order vacating his parole warrant and releasing him from the custody of New York State Department of Corrections and Community Supervision (DOCCS or Respondent) on the basis that he is being illegally detained because DOCCS failed to consider his mental competency during parole revocation proceedings in violation of the Due Process Clauses of the Fourteenth Amendment of the United States Constitution and New York Constitution, article I, § 6. By decision dated February 24, 2015, this court sustained petitioner's writ. This expands that decision.
On November 1, 1989, judgment was entered against petitioner in Supreme Court, Bronx County (Barrett, J.), convicting him of criminal sale of a controlled substance in the second degree (PL § 220.41) and sentencing him to an indeterminate term of life imprisonment with a mandatory minimum period of four years.
On August 1, 1990, judgment was again entered against petitioner in Supreme Court, Bronx County (Goodman, J.), this time convicting him of murder in the second degree (PL § 125.25) and criminal possession of a firearm in the second degree (PL § 265.03). Petitioner was sentenced to an indeterminate term of life imprisonment with a mandatory minimum period of eighteen years on the murder conviction, and an indeterminate term of six years imprisonment with a mandatory minimum period of two years on the weapon conviction to be served concurrently with the life sentence.
On or about August 30, 2013, petitioner was conditionally released and scheduled to be supervised by DOCCS for the remainder of his natural life. In connection with his conditional release, petitioner signed a document entitled “Certificate of Release to Parole Supervision” (see Respondent's Exhibit A). Prior to petitioner's release, DOCCS informed him that his failure to abide by these conditions would result in the revocation of his parole. By signing this document, petitioner agreed to comply with the terms and conditions set forth in it, which included:
On September 17, 2013, petitioner was declared delinquent for violating Conditions of Release Rule 4 in that “on 9/17/13 and thereafter he failed to comply with his immediate and continuing duty to inform parole of a change of residence from 290 S Ocean Freeport N.Y. when he left without a forwarding address” (see Respondent's Exhibit B, Violation of Release Report [VRR] ). Petitioner was also charged with violating Rule 2 in that “on 9/18/13 and thereafter he failed to make an office report as directed by PO Todd on 9/11/13” (id. ).
On September 20, 2013, DOCCS issued Parole Warrant No. 667401 (the warrant), and lodged it against petitioner on September 21, 2013 (see Respondent's Exhibit D).
On September 23, 2013, DOCCS served petitioner with a copy of the VRR, the Notice of Violation (Notice), and notice of the preliminary parole revocation hearing (preliminary hearing) (see Respondent's Exhibit E).
Petitioner elected to waive the hearing. He subsequently challenged that waiver by writ of habeas corpus moving in Supreme Court, Bronx County, for an order vacating his parole warrant and releasing him from the custody of DOCCS. By decision and order dated January 8, 20141 , that petition was dismissed (Iacovetta, J.).
Then, on February 5, 2014, petitioner moved this court for an order vacating his parole arguing that DOCCS failed to consider his mental competency during parole revocation proceedings in violation of the Due Process Clause of the Fourteenth Amendment of the United State Constitution and New York Constitution, article I, § 6. By decision and order dated June 24, 2014, this court dismissed the petition with leave to renew upon completion of petitioner's final parole revocation hearing on the basis that it lacked the statutory authority to issue such an order.
On August 5, 2014, petitioner's parole revocation matter was restored to the active calendar. At that time, counsel notified respondent that petitioner lacked the capacity to understand the nature of his parole revocation proceeding or assist in his defense. Specifically, counsel represented that petitioner suffered from dementia, had a delusional belief that he was not subject to parole supervision, insisted that he had been exonerated by an international tribunal, and urged counsel to verify such status by contacting either the President or Vice–President of the United States.
On September 30, 2014, DOCCS commenced petitioner's final revocation hearing, which continued and concluded on October 30, 2014. During the proceeding. Dr. Perry, who performed an independent evaluation of the petitioner, concluded that petitioner indeed suffered from a diminished mental capacity, and indicated that he was not competent to assist in his own defense. Further, given such dementia, the Office of Mental Health designated petitioner a “1s.” As a result of such status, petitioner was to receive intensive supervision.
On December 24, 2014, Supervising Administrative Law Judge (“SALJ”) Tomlinson sustained Charge 2, which specified that petitioner had left his approved residence without permission from his parole officer, and imposed an 18–month time assessment.
Then, as noted, by writ of habeas corpus submitted February 18, 2015, petitioner sought an order vacating his parole warrant claiming DOCCS failed to consider his mental competency during his final parole revocation hearing. By decision and order dated February 24, 2015, this court sustained petitioner's writ.
It is well recognized that parole revocation proceedings are separate and distinct from criminal prosecutions as the former are governed by an administrative agency rather than through judicial intervention. As such, the full array of constitutional rights and protections afforded a criminal defendant is unavailable to parole revocation proceedings (see Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 [1972] ). Identifying those protections that must be extended to parolees, however, is neither simple nor clear especially when wading through the murky waters of the administrative process. Just as criminal constitutional protections cannot be applied wholesale to administrative hearings (Morrissey, 408 U.S. at 480, 92 S.Ct. 2593 ; State of N.Y. v. Floyd Y., 22 N.Y.3d 95, 103, 979 N.Y.S.2d 240, 2 N.E.3d 204 [2013] ), though, so too reliance upon civil proceeding precedent, as respondent argues, is inapposite. To equate a civil commitment proceeding where an attorney need only represent the interests of his mentally incompetent client with a parole revocation proceeding requiring a parolee to assist in his own defense is patently absurd. Aside from “notice and hearings [being a] prerequisite to due process” (Joint Anti–Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 164, 71 S.Ct. 624, 95 L.Ed. 817 [1951] ), there exists a fundamental difference between criminal, administrative, and civil proceedings.
Recognizing that parole supervision and revocation are administrative in nature, the Supreme Court in Mathews v. Eldridge set forth three dictates of due process applicable in administrative proceedings: (1) the private interest affected by the official action, (2) the risk of erroneous deprivation of such interest, and (3) the burden on the government (Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 [1976] ). While Mathews does not provide a specific framework for assessing due process in parole revocation proceedings, it nevertheless provides the appropriate standard of review (Medina v. California, 505 U.S. 437, 443, 112 S.Ct. 2572, 120 L.Ed.2d 353 [1992] ).
True, parole is a privilege not a right. It is equally true that parole revocation proceedings place a parolee's liberty at stake.
As such, a minimal amount of due process is owed to a parolee, and courts must ensure that such rights are not discarded (Joint Anti–Fascist Refugee Comm., 341 U.S. at 200–201, 71 S.Ct. 624 ). Indeed, procedural protections of due process are warranted if an individual would be “condemned to suffer grievous loss of any kind” (Joint Anti–Fascist Refugee Comm. at 168, 71 S.Ct. 624 ). Revocation of parole exposes a parolee to a return to prison. By all accounts, that certainly constitutes a “grievous loss” particularly where the potential maximum sentence is life imprisonment.
Notwithstanding a convicted felon's reduced rights in administrative proceedings, it is a basic tenant of society that deprivation of liberty carries with it enhanced due process. It is indisputable that liberty is a significant private interest. It is also indisputable that liberty is at risk during a parole revocation hearing. Thus, when a when a parolee is facing a charge that he violated a...
To continue reading
Request your trial
-
People v. Warden, Cynthia Brann
...of a parolee it is a basic tenant of society that the 4 deprivation of liberty carries with it enhanced due process. Fortunato v Warden, 48 Misc.3d 649 (Sup Ct, Bronx Cty (2015). By the restriction of parolee's liberty interest, the quasi- criminal, quasi- judicial parole hearing procedure ......
-
People v. Warden
...process by invoking Section 2–b(3). The statute was never intended to be used in such a way. Accord, People ex rel. Fortunato v. Warden,48 Misc.3d 649, 9 N.Y.S.3d 849, 856 (Sup.Ct. Bronx Co.2015).Moreover, it would be unnecessary to issue the order contemplated by both sides because this ma......