The People &c. ex rel. Michael
Matthews,
Respondent,
v.
New York State Division of
Parole,
Appellant.
2001 NY Int. 1
This appeal concerns the statutory time period within
which the Division of Parole must conduct a preliminary parole
revocation hearing. Petitioner, a New York State parolee, was
convicted of Federal bank robbery. While he was incarcerated in
an out-of-state federal prison, the Division of Parole lodged a
parole revocation detainer against him. Thereafter, to resolve a
federal sentencing issue, federal authorities temporarily housed
him in New York jails. Petitioner claims he was entitled to a
In 1992, while petitioner was on New York State parole following an Onondaga County conviction, federal law enforcement agents arrested him for committing a bank robbery in Schenectady. Petitioner was convicted in the United States District Court for the Northern District of New York and on March 1, 1993 was sentenced to 135 months in prison. In June 1993, the Division obtained a parole violation warrant and lodged a detainer with federal authorities at Leavenworth Penitentiary in Kansas where petitioner was imprisoned. In March 1994, federal authorities transferred petitioner to Allenwood Penitentiary in Pennsylvania and notified the Division that the detainer had accompanied him there, pending his tentative release date of November 26, 2001.
Soon after this transfer, the United States Court of
Appeals for the Second Circuit vacated petitioner's sentence and
remanded the case to the District Court for resentencing (see,
United States v Matthews, 20 F3d 538). In July 1994, without
informing the Division, federal authorities brought petitioner to
New York for that purpose. Though he remained in federal
custody, petitioner was housed in a number of county jails in New
Executive Law § 259-i(3)(c)(i) mandates that the Board of Parole accord an alleged parole violator a preliminary revocation hearing "within fifteen days after the [parole violation warrant] and temporary detention has been executed" (emphasis added). Failure to conduct a timely preliminary revocation hearing violates the parolee's right to due process unless the Division is able to establish that it could not conduct a hearing because the parolee was beyond its "convenience and practical control" (see, Matter of Vasquez v New York State Board of Parole, , 58 NY2d 981, 983; People ex rel. Gonzales v Dalsheim, , 52 NY2d 9, 12).
Opposing the writ, the Division argued that the 15 day
period did not begin to run until the parole violation warrant
was "executed" within the meaning of Executive Law § 259-
Supreme Court held that Executive Law § 259-i(3)(a)(iv)
did not avail the Division because from May 1994 until November
1996 petitioner was not "detained in another state." The court
nevertheless dismissed the petition, finding that petitioner had
not been subject to the Division's "convenience and practical
control" when he was held in New York jails awaiting resentencing
in federal court.[1]
Over a two-Justice dissent, the Appellate
Division reversed, holding that the Division failed to meet its
burden of showing that petitioner was beyond its convenience and
practical control.[2]
The dissenters asserted that Executive Law
Prior to 1984, when an alleged parole violator was
incarcerated in another state, a parole violation warrant was
deemed to have been "executed" -- and the 15 day period began to
run -- as soon as the detainer was lodged in the out-of-state
prison (see, People ex rel. Gonzales v Dalsheim,
In 1984, the Legislature enacted Executive Law § 259- i(3)(a)(iv) to facilitate the prosecution of parole violators held in out-of-state facilities.[3] It provides that
"where the alleged violator is detained in another state pursuant to [a parole violation warrant] * * *, the warrant will not be deemed to be executed until the alleged violator is detained exclusively on the basis of such warrant and the division of parole has received [the necessary notification regarding extradition of the alleged violator]. The alleged violator will not be considered to be within the convenience and practical control of the division of parole until the warrant is deemed to be executed" (L 1984, ch 435 [emphasis added]).
Accordingly, when the Division lodges a detainer against an
alleged parole violator in an out-of-state facility, the 15 day
period is not triggered until the individual has completed the
Petitioner asserts that from July 1994 until November 1996, he was not being "detained in another state pursuant to [a parole violation warrant]" and thus subdivision (3)(a)(iv) cannot apply. We disagree. Because petitioner was incarcerated "in another state" when the Division lodged a detainer against him, the parole violation warrant was not deemed to be "executed" -- and the 15 day period did not start to run -- until petitioner was held exclusively on the strength of the New York State detainer and was available for extradition. The statute provides in absolute terms that until the warrant is deemed to be "executed," the parolee "will not be considered to be within the convenience and practical control of the division." Thus, as a matter of law, petitioner was not subject to the Division's convenience and practical control -- and had no right to a preliminary revocation hearing -- until the federal government relinquished custody in October 1997.
This workable bright-line rule reflects the
Legislature's intent. Prior to the enactment of Executive Law
§ 259-i(3)(a)(iv), whenever a parolee was detained in another
state, the Division was faced with the task of coordinating a
preliminary revocation hearing with out-of-state officials. The
1984 amendment eliminated this administrative burden. Now, when
a parolee is incarcerated outside of New York, the Division
simply has to lodge its detainer and wait until the out-of-state
The rule applies to petitioner. A parolee who has been temporarily brought into New York while serving a sentence in another jurisdiction is still not a New York prisoner. The purpose of subdivision (3)(a)(iv) is to relieve the Division of any continuing obligations to monitor alleged parole violators serving sentences outside of New York. It would be unrealistic to expect the Division to keep track of every alleged parole violator who is detained out-of-state and is brought temporarily within our borders for any number of reasons.
Accordingly, the order of the Appellate Division should be reversed without costs and the petition dismissed.
Footnotes
1 When parolees are serving sentences in state or local facilities in New York, courts generally enforce the 15 day time period because the parolees are within the convenience and practical control of the Division (see, People ex rel. Brown v New York State Division of Parole, , 70 NY2d 391, 398-399 ["A parolee is subject to the 'convenience and practical control' of the (Division) when he is in the custody of a correctional facility as an inmate with which the Parole Board has parole jurisdiction."] [citing Matter of Beattie v New York State Board of Parole, , 39 NY2d 445, 447]).
2 As the Appellate Division majority noted, the Division relied exclusively on the Supreme Court's "convenience and practical control" analysis in arguing for an affirmance. The Division did not argue that Executive Law § 259-i(3)(a)(iv) applied. It did, however, make that argument at the trial level. The issue is therefore preserved for our review (see, Matter of Couch v Perales, , 78 NY2d 595, 605 n5; Matter of Seitelman v Lavine, , 36 NY2d 165, 170 n2 ["This court will consider a question that has been raised in the tribunal of original jurisdiction even though it may not have been argued in the Appellate Division."]; Telaro v Telaro, , 25 NY2d 433, 437-438 [expressly rejecting argument that party "abandoned or waived" an argument by failing to raise it at the Appellate Division]).
3 See Budget Report, Bill Jacket, L 1984, ch 435; see also, Division of Probation Mem, Bill Jacket, L 1984, ch 435 (noting that proposed amendment will "eliminate present difficulties experienced by the Division of Parole"); Criminal Justice Services Mem, Bill Jacket, L 1984, ch 435 (calling the proposed amendment "a more equitable way of assuring that due process is accorded to the parolee without imposing undue administrative burdens on the State").