The following papers were considered by the Court: 1. Petition for Writ of Habeas Corpus, filed on March 10, 2021; 2. Answer to Habeas Corpus Petition, filed on March 23, 2021; 3. Petitioner’s Reply to AAG’s Answer to Habeas Corpus Petition, filed on April 13, 2021; 4. Sur Reply Affirmation to Petitioner’s Reply, filed on April 19, 2021. DECISION AND ORDER Petitioner, Darren Devane, filed a petition for a writ of habeas corpus, through his attorney Steven Bandel, on March 9, 2021. Petitioner is currently serving concurrent sentences of five years and two-and-a-half to five years with five years Post-Release Supervision following his conviction for Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Third Degree. Petitioner argues he is entitled to habeas relief because his Sixth Amendment due process rights were violated when his final parole revocation hearing was held telephonically. The NYS Attorney General’s Office has filed an answer on behalf of the Department of Corrections, opposing the petition in its entirety, arguing that the petition should be denied because petitioner did not exhaust his administrative remedies and that the telephonic procedure was acceptable due to the COVD-19 pandemic and did not violate the petitioner’s due process rights. The Court has decided the petition for a writ of habeas corpus as follows: I. ADMINISTRATIVE REMEDIES The issues raised by petitioner in his habeas writ were raised in his administrative appeal. The petitioner filed his notice of appeal on June 8, 2020 and perfected his administrative appeal on November 25, 2020. Petitioner failed to wait for a decision to be issued by the Appeals Unit. Instead, the petitioner filed his habeas corpus petition two weeks prior to the determination made by the Appeals Unit. On March 26, 2021, a decision termed “Appeals Unit Findings & Recommendation” was timely issued denying the petitioner’s appeal. As such, petitioner failed to exhaust his administrative remedies and therefore, habeas corpus relief is not available to him. See, People ex. rel. Layne, 242 AD2d 415 (2d Dept. 1997). II. SIXTH AMENDMENT VIOLATION Even though habeas corpus relief is not available to the petitioner because he did not exhaust his administrative remedies, the Court will address the petitioner’s claim that the telephonic process violated his Sixth Amendment due process rights. This is a case of first impression. The “Appeals Unit Findings & Recommendations” did address the issue of the telephonic procedure utilized at the hearing. The decision noted that “given the unprecedented nature of the COVID-19 crisis, the telephonic hearing was the best available format at the time.” In two cases involving similar claims, albeit in the context of a preliminary hearing, both courts denied habeas relief. See, People ex rel. Linebacker v. Brann, Sup Ct, Kings County, July 16, 2020, Cyrulnik, J., index No. 1418/20; see also People v. ex rel. Newman v. Baxter, Sup Ct, Monroe County, Nov. 10, 2020, Dinolfo, A.J., index No. E 2020007588. What makes this case unique, is that the issue of utilizing a telephonic procedure at a final revocation hearing has never been addressed. This is the first case where a petitioner is contesting the use of the telephonic process at a final parole revocation hearing. The petitioner’s attorney did make a timely objection to the telephonic procedure. However, he never requested an adjournment and instead chose to continue a demand for a hearing knowing that the Parole Board was unable to accommodate a live hearing due to the COVID-19 crisis. The Administrative Law Judge (“ALJ”) presiding over the matter was left with no choice but to conduct a hearing while taking into account the dangerous and contagious nature of the COVD-19 pandemic. The telephonic process was being used as a safety precaution due to the pandemic. In People ex rel. McGee v. Walters, the court held that “a hearing examiner may, upon a specific finding of good cause, permit the introduction of adverse hearsay statements without affording the parolee an opportunity to confront their declarant.” People ex rel. McGee v. Walters, 62 NY2d 317, 318 (1984). Any such determination “requires consideration of the rights favored statutes, the nature of the evidence at issue, the potential utility of cross-examination in the fact-finding process, and the State’s burden in being required to produce the declarant.” People ex rel. Linebacker v. Brann at 4. It logically follows that if a hearing examiner may dispense entirely with the opportunity to confront a declarant, then a hearing examiner may certainly conduct the hearing utilizing the best available format, which in this case was a telephonic hearing. This Court finds that the telephonic hearing was “the best available format at the time,” but was also compliant with the petitioner’s Sixth Amendment due process rights. See, Appeals Unit Findings and Determination. Courts have recognized that a final parole revocation hearing is not a criminal proceeding, but rather an administrative proceeding. People v. Polimeni, 128 Misc 2d 814, 816 (NY City Ct 1985); Executive Law, Sections 259-a to 259-i. Therefore, the due process standards applied to a criminal prosecution do not apply to a parole revocation hearing. The revocation process involves a “deprivation of a conditional liberty and, as such, the procedural protections afforded must be flexible in consonance with the demands of the particular situation.” People ex rel. King v. New York State Bd. of Parole, 65 AD2d 465, 468 (1st Dept 1979). The relaxation of due process concerns in the context of final parole revocation hearings has been addressed and upheld by the United States Supreme Court, noting that, if desired, the parolee must have an opportunity to be heard prior to the final decision, but there is “no thought to equate this second stage of parole revocation to a criminal prosecution in any sense.” Morrissey v. Brewer, 408 US 471, 489, 92 S Ct 2593, 2604, 33 L Ed 2d 484 (1972); see also. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656. “In general, ‘a parolee has due process and statutory rights to confront adverse witnesses whose statements are offered at a parole revocation hearing.’ People ex rel. Rosenfeld v. Sposato, 87 AD3d 655, 666; citing to People ex rel. McGee v. Walters, 62 NY2d 317, 219 (1984). A parolee’s right to confront adverse witnesses embraces “a strong preference for face to face confrontation and cross-examination, nevertheless, upon a specific finding of good cause, permit the introduction of adverse hearsay statements without affording the parolee an opportunity to confront the declarant.” Sposato at 666; Walters at 319. The issue raised is whether the telephonic process denied petitioner of his Sixth Amendment rights to confront witnesses. The petitioner was afforded the opportunity to confront witnesses at the hearing utilizing the telephonic procedure. There is no question the petitioner and his attorney had ample opportunity to cross-examine the witnesses. The ALJ specifically stated that he would allow as much time as needed by petitioner’s counsel to speak with his client privately during the hearing. During the hearing, petitioner’s attorney was in fact allowed to speak with his client privately while witnesses were still testifying. This occurred on three separate occasions. The suggestion that the ALJ or the Parole Revocation Specialist (“PRS”) might or did listen to the conversations is without any basis in fact. This Court has reviewed the hearing transcript and it is clear that the petitioner and his attorney had full opportunity to confront all the witnesses called by the PRS. In addition, petitioner was able to have witnesses testify on his behalf, and the petitioner himself gave testimony. The petitioner’s argument that the telephonic process prevented the parties and the ALJ from observing the witnesses in person and therefore, prevented the ALJ and parties from observing any possible physical reactions to questions, such as body language, is unavailing. The petitioner’s attorney had a full opportunity to cross examine all the witnesses. The two charges sustained by the ALJ involved straightforward accusations that were easily provable. The first was a curfew violation and the second was failing to notify his parole officer of law enforcement contact on October 25, 2019. The petitioner had been arrested on that date for conspiracy to sell cocaine and illegal guns. The petitioner failed to notify his parole officer of this new arrest. This Court finds that the hearing did not violate the petitioner’s Sixth Amendment due process rights. The petitioner was given sufficient opportunity to be heard and confront the witnesses against him, and the telephonic hearing procedure did not hamper that right. The petitioner’s writ of habeas corpus is hereby denied in its entirety. The foregoing constitutes the decision and order of the Court. SO ORDERED. Dated: May 18, 2021
