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SUPREME COURT OF NEW YORK, YATES COUNTY
In the Matter of the Application of KENT KROEMER,
Petitioner
v.
DEBRA JOY, DIRECTOR OF
TEMPORARY RELEASE PROGRAMS,
Respondent.
INDEX NO. 03-263
769 N.Y.S.2d 357; 2003 N.Y.
Misc. Lexis 1463
November 17, 2003, Decided
MEMORANDUM DECISION AND
JUDGMENT
W. Patrick Falvey, Acting J.S.C.
There is a
dearth of case law addressing the issue of whether or not the petitioner's Tier
III hearing afforded this defendant due process under the Federal Constitution
concerning his temporary release status.
The
petitioner, Kent Kroemer, filed an Article 78 Petition, alleging various violations of his due process rights
and errors in the respondent's removal of petitioner from the temporary release
program. The Court issued an Order to Show Cause on August 11, 2003, directing
the respondent to show cause, by written submission only, on or before
September 30, 2003, why the relief requested should not be granted.
The respondent failed to timely serve the petitioner with the
responding papers, having mailed them to the petitioner at the wrong facility.
The petitioner asks the Court to dismiss the proceeding for this tardiness in
violation of the Court's Order to Show Cause.
CPLR § 7804(e) provides:
"Should the body or officer
fail either to file and serve an answer or to move to dismiss, the court may
either issue a judgment in favor of the petitioner or order that an answer be
submitted."
CPLR § 2001 provides: "At any stage of an action, the court
may permit a mistake, omission, defect or irregularity to be corrected, upon
such terms as may be just, or if a substantial right of a party is not
prejudiced, the mistake, omission, defect or irregularity shall be
disregarded."
Here, the respondent quickly remedied the error and sent the
answer and supporting papers to the petitioner at his correct address. Thus,
the Court concludes that the matter shall be determined on the merits, and the
petitioner's motion for judgment in petitioner's favor due to respondent's late
response is denied.
The
petitioner, a state prisoner, was accepted into the Temporary Release Program
("TRP") of the New York Department of Correctional Services
("DOCS"). After fifteen months in the program, at which time he was
employed and participating in a "Five and Two" schedule, that is,
spending five days at home and two days per week in the facility, petitioner
was removed from the program and returned to prison full time.
The petitioner had received
two speeding tickets, one on February 23, 2003 and the other on April 7, 2003.
Based on these tickets, a misbehavior report was issued on April 10, 2003,
charging the petitioner with a Temporary Release Violation and False Statements
or Information. (Return, Ex C). A Tier III disciplinary hearing was held on
April 22, 2003, regarding the misbehavior report. The petitioner was present on
both occasions and a written transcript of the hearing was produced. (Return,
Ex I). The hearing officer found the petitioner not guilty of the False
Statements or Information charge and guilty of the Temporary Release Violation,
i.e., "I promise that my conduct will not be a menace to the safety or
well-being of myself, other individuals or to society." 7 NYCRR §
1902.1(8)(c). The hearing office relied only on the second alleged speeding
ticket in finding the petitioner guilty of said temporary release violation
(Return, Exhibit. J).
As required
by 7 NYCRR § 1904.2(f), the hearing officer referred the Tier III hearing to
the Temporary Release Committee ("TRC") for review. Since the
petitioner was no longer present at the facility where the TRC was meeting to
review the matter, the petitioner was not present at said meeting, which
occurred on May 1, 2003. [7 NYCRR § 1904.2(k)]. It does not appear from the
record presented that the petitioner was given advance notice of the May 1,
2003 meeting.
On May 1, 2003, the TRC
recommended that petitioner be removed from the TRP and the Acting
Superintendent subsequently removed the petitioner from the program for
disciplinary reasons. (Return, Ex L). Petitioner administratively appealed the
determination of the superintendent and the appeal was denied.
The petitioner asserts that
his due process rights were violated when he was not allowed to participate in
the TRC removal hearing. See Anderson v. Williams, 173 Misc. 2d 65, 660
N.Y.S.2d 957.
The Second Circuit US Court of Appeals has held that prison inmates in a temporary release
program must receive a hearing prior to revocation of their release status. Tracy
v Salamack, 572 F.2d 393, 395-96. The Court in Anderson v Recore, 317 F.3d 194
adopted the rationale of the district court in Tracy v. Salamack, 440 F. Supp.
930, 933 concluding that such inmates were entitled to a hearing by applying
the following two prong test:
1. The
prisoner demonstrates that he has suffered a grievous loss of liberty within
the meaning of Morrissey v Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d
484(1972). Id., 195. (The fact that the prisoner had been out of prison on work
release).
2. The
prisoner shows a right of expectation arising out of federal or state law or
practice that protected him against the loss. Id., 198, citing Tracy v
Salamack, supra, p. 933. (Entitlement to continued temporary release status was
found in the wording of the temporary release agreement signed by the
plaintiffs and in the official policy of New York for implementing the
temporary release statute. See Anderson v. Recore, supra, p.198).
The Second Circuit concluded in Anderson v. Recore, supra, that
the Supreme Court in, (Sandin v Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L.
Ed. 2d 418, 1995) by affirming the validity of Morrissey, supra, and (Meachum v
Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451, 1976) implicitly affirmed
Tracy v. Salamack, 572 F.2d 393, because Tracy explicitly rests upon Morrissey
and Meachum. The Court said, "Morrissey itself established that once the State has given an inmate the
freedom to live outside an institution, it cannot take that right away without
according the inmate procedural due process." Anderson v. Recore, supra,
p. 200.
The
question before this Court is whether the Tier III hearing afforded the
petitioner satisfied the procedural due process to which the petitioner was
entitled as a work release participant.
For the procedures afforded a
prisoner to pass due process muster under Morrissey, supra, 486-89, the
following rights must be given him:
1. Written notice of the
claimed violations [of work release rules];
2. Disclosure to [the
prisoner] of the evidence against him;
3. Opportunity to be heard in
person and to present witnesses and
documentary evidence;
4. The right to confront and
cross-examine adverse witnesses;
5. A 'neutral and detached'
hearing body;
6. A written statement by the
fact finders as to the evidence relied on and reasons for revoking [work
release status].
Petitioner states in
paragraph 19 of his verified amended petition: "It should also be noted
that petitioner was removed from said TRP without any notice of the specific
reasons he was being considered for removal, without meeting with any TRC
member, and without participating in the removal hearing."
Respondent in her Memorandum of Law points out that since
petitioner had a full Tier III hearing, and he was no longer at the facility
where the TRC was meeting, he was given all process he was entitled to under the
regulations. See 7 NYCRR § 1904.2(b)-(f).
The Court
has examined the transcript of the Tier III hearing (Return, Ex I), and notes
that the petitioner was not told by the Hearing Officer that his temporary
release was in jeopardy due to the findings of the Hearing Officer and that the matter would
be forwarded to the TRC for their review. The written disposition (Return, Ex
K) likewise did not inform the petitioner that the TRC would be reviewing his
status in the TRP, and what claimed violations were being considered by the TRC
. It also appears that the TRC did not have access to the recording of the Tier
III hearing, or any written transcript of it when it held its hearing.
On a careful review of the
"Continuous Temporary Release Program TRC Review Form" there is no
mention of the recording or any transcript therefrom, nor do the statements
contained in that form make mention of any testimony presented at the hearing
or the findings by the Hearing Officer. Further, as the petitioner notes, the
TRC made different findings than the Tier III Hearing Officer. Specifically,
after considering all the evidence presented in the Tier III Hearing, the
Hearing Officer did not find the petitioner "guilty" concerning the
violation involving the first speeding ticket. Yet, the TRC based its
recommendation to remove the petitioner for disciplinary reasons on the
conclusion that the petitioner "jeopardized safety of community receiving two
speeding citations while on TR. (emphases added). Violation of rules/regulation
by this conduct." (Return, Ex L).
It appears
to this Court that although the respondent did not violate the removal
procedures set forth in 7 NYCRR § 1904.2, such procedures did not adequately
protect this petitioner's constitutional due process rights.
Specifically,
the petitioner was never apprised that the outcome of the Tier III disciplinary
proceeding could affect his temporary release status. He was not given written
notice of the claimed violation of the work release rules that were being
considered by the TRC. He was not apprised of the evidence that was to be
forwarded to the TRC to be used against him. He was not apprised of, nor was he
given any opportunity to present proof in opposition to any proof that was
presented to the TRC. There is nothing in the record to indicate that the TRC
reviewed the audio recording of the Tier III hearing during the TRC hearing.
Nor are there any provisions in the removal procedure (7 NYCRR § 1904.2) that
indicate that when an inmate is absent from the hearing, the TRC reviews the
Tier III hearing recording. Such a procedure would at least insure that the TRC
had before it evidence presented by the inmate, and not just evidence provided
by the facility.
The
petition is granted. The matter is returned to the TRC for a hearing in the
presence of the petitioner (or, if the petitioner is in another facility,
following a meeting of the petitioner with the temporary release committee
chairperson at the receiving facility with a record of that meeting made, and
forwarded to the TRC), following the procedures set forth in 7 NYCRR §
1904.2(l) .
SO ORDERED.
ENTER.
Hon. W. Patrick Falvey
Acting Justice, Supreme
Court
Yates County
Decision Date: November 17,
2003
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