The application of Petitioner, Andres Gutierrez-Quiroz, by way of an Order to Show Cause, for release from incarceration as a result of an alleged Violation of Parole, is determined as hereby provided. On March 23, 2021, Petitioner was convicted of Penal Law (“PL”) 110/130.65 (3), Attempted Sexual Abuse in the 1st Degree, and sentenced by a different judge of this court to a determinate sentence of 11/2 years and 10 years of post-release supervision for engaging in frequent sexual activity with his then five-year old daughter over a period of about five years. On July 9, 2021, Petitioner was released to parole supervision where one of Petitioner’s conditions of release was for him to participate in sex offender counseling/treatment as directed by the Parole Officer. Pursuant to the Interstate Compact, the Petitioner was permitted to transfer his parole supervision to the State of Pennsylvania on or about April 2022, pursuant to Executive Law §§259-m, 259-mm, 259-o, 259-p. The Pennsylvania Parole Board mandated Standard Special Conditions for Sex Offenders, which included complying with and successfully completing all treatment recommendations. The Petitioner was required to complete the sex offender program at Pennsylvania Forensic Associates. According to the report by Pennsylvania Forensic Associates, Petitioner was unsuccessfully discharged from the program on or about November 23, 2022. As a result, the Pennsylvania Parole Board brought parole revocation charges against the Petitioner. On or about December 19, 2022, a preliminary hearing was held by the Pennsylvania Parole Board. At that hearing, Petitioner and his attorney indicated that they waived the preliminary hearing and were not contesting the violations. Petitioner further stated that he wished to further address the violations at a hearing in the state of New York. The Hearing Examiner determined that probable cause was established for one or more significant violations based on the documentary evidence. On or about February 4, 2023, a notice of violation was served on Petitioner by New York State Department of Correction and Community Supervision (DOCCS). There are four total parole revocation charges that were brought by DOCCS against Petitioner. On or about February 8, 2023, a preliminary hearing was held with DOCCS proceeding only on Charge #1 for failing to comply with the special written conditions of sex offender treatment program at Pennsylvania Forensic Associates. The preliminary hearing officer found that based on the testimony of Parole Revocation Specialist Daisy Rodriguez and the documentary evidence, there was a preponderance of the evidence as to Charge #1 and held the Petitioner over for a final revocation hearing. Petitioner’s final hearing will be scheduled following a ruling of this Petition by this Court. The Petitioner’s complaint concerns the preliminary hearing officer’s primary reliance on a series of documents introduced into evidence that sets forth the grounds for the charges. The Petitioner claims the documents are hearsay and not admissible. However, the preliminary hearing Court properly admitted these documents under the Business Document Exception to the hearsay rule as it relates to Parole Violation hearings under People ex rel McGee v. Walter, 62 NY2d 317 (1984). The Court also considered the testimony of PRS Rodriguez. The Court notes that the instant case is a review of a preliminary hearing, which carries the low standard of proof at “probable cause,” compared to the subsequent final parole revocation hearing that carries a higher burden of proof at “preponderance of the evidence.” Executive Law §§259-i(c)(iv), 259-I(3)(f)(viii). As is the procedure in the instant case, a preliminary hearing is less formal than a final hearing, and only a minimal inquiry by the hearing officer is necessary to determine whether probable cause exists to believe a parolee committed the acts which constitute a violation of his parole in an important aspect. This is so because parole violation preliminary hearings are essentially administrative proceedings, not criminal trials. The standard of proof that controls is whether the evidence is satisfactory to the hearing officer. Stricter common law standards of proof do not apply. Morrissey v. Brewer, 408 U.S. 471 (1972). A review of the case law indicates the key to hardship and good cause focuses on the control of New York State over the appearance of the witness. For example, hardship and good cause were found where a missing witness refused to appear and testify. Coston v. N.Y.S. Division of Parole, 111 AD3d 1075 (3rd Dept. 2013); they were also found due to the COVID 19 health crisis. People ex rel Lineberger v. Brann, 68 Misc 3d 986 (Kings Co. Sup. Ct. 2020). These cases and facts can be distinguished from People ex rel Rosenfeld v. Sposato, 87 AD3d 665 (2d Dept. 2011), where the witness, a New York State Police Officer was on vacation and could have been called back as an employee under the control of the State of New York. In the case at bar, the witnesses being requested to appear are all employed by or lived in the state of Pennsylvania and were out of reach for the purpose of a preliminary hearing. As a result, the hearing officer determined hardship and good cause. The Court further notes almost all of the cases cited by the Petitioner are the results of a review of the final revocation hearing and not, as here, the preliminary hearing. As previously stated, the statement of proof (Probable Cause vs. Preponderance of the Evidence) is markedly different and the conduct of the hearings should reflect that difference. The one exception was Rosenfeld. supra, where that court, unlike the case at bar, failed to determine good cause and hardship at the preliminary hearing. In summary, only minimal inquiry is needed for a hearing officer to determine probable cause exists that a parolee committed a violation of parole conditions. See generally, People ex rel. Calloway v. Skinner, 33 NY2d 23 (1972). While a parole revocation requires due process be afforded a parolee at the preliminary hearing, it is not as exacting as the standards that are in the context of a criminal charge or a final hearing; rather, it is a more relaxed standard. See generally, Morrissey v. Brewer, supra. Based upon the foregoing, the Court determines probable cause exists and, upon these facts, DOCCS can properly continue to retain Petitioner in custody pending further hearing. However, the Court expects the final revocation hearing will be conducted as is required under the preponderance of evidence standard of proof, within the 90 day statutory period. People ex rel Brown v. Sullivan, 70 NY2d 391 (1987). In reaching this determination, the Court reviewed the Petitioner’s motion papers, the response of the People and the reply of the Petitioner. This determination shall constitute the decision and Order of this Court. SO ORDERED. Dated: June 2, 2023
