People ex rel. Thompson v. Warden of Rikers Island Correctional Facility

41 A.D.3d 292, 839 N.Y.S.2d 47

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Robert G. Seewald, J.), entered August 7, 2006, which denied petitioner’s application for a writ of habeas corpus and dismissed the petition, unanimously affirmed, without costs.

Petitioner, who argued before the application court that the warrant for his parole violation was executed on April 1, 2006, when he was arrested on unrelated drug charges, now argues for the first time on appeal that the warrant was executed on April 3, when he appeared for arraignment on the drug charges. Were we to consider this unpreserved argument, and were we to assume in petitioner’s favor that the warrant was executed on April 3, not April 4, as indicated by respondents’ presumptively regular records, we would affirm denial of the writ. An April 3 execution date would mean that the 15-day time limit for actually holding a preliminary parole revocation hearing (Executive Law § 259-i [3] [c] [i]) was satisfied by the April 18 hearing, but that the three-day time limit for giving notice of that hearing (Executive Law § 259-i [3] [c] [iii]) was one day late. However, unlike the 15-day time limit, a failure to comply with the three-day time limit does not affect the right to be restored to parole absent a showing of prejudice (People ex rel. Washington v New York State Div. of Parole, 279 AD2d 379, 380 [2001]). Petitioner does not allege or show any prejudice as a result of the claimed one-day delay. Petitioner’s unpreserved claim that he did not receive notice that the hearing had been rescheduled from April 19 to April 18 is unavailing for similar reasons. Notice of a change in the scheduled date of a preliminary hearing is not required by the Executive Law, and a failure to give such notice is not a violation of a parolee’s rights (People ex rel. Walker v Warden of Rikers Is. Correctional Facility, 160 AD2d 498 [1990]). Concur—Andrias, J.P., Friedman, Sweeny, McGuire and Kavanagh, JJ.