Preview
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
SUPREME COURT OF THE STATE OF NEW YORK
BRONX COUNTY
PEOPLE OF THE STATE OF NEW YORK EX REL. Index No. ___________
ABIGAIL SLOAN, on behalf of Elijah Harris,
Petitioner, B&C: 2412400451
NYSID: 13902888L
v. Warrant No.: 802148
MZ: 200059-24BX
DANIEL MARTUSCELLO, Acting Commissioner, New
York State Department of Corrections and Community VERIFIED PETITION
Supervision; LYNELLE MAGINLEY-LIDDIE,
Commissioner, New York City Department of Correction,
Respondents.
1. I, ABIGAIL SLOAN, am a law graduate practicing under the supervision of
LORRAINE MCEVILLEY, an attorney admitted to practice law in the state of New York, and am
associated with TWYLA CARTER, Attorney-in-Chief of the Legal Aid Society, New York, and
I am the attorney of record for Elijah Harris, the petitioner herein. I make this Petition on Mr.
Harris’s behalf pursuant to CPLR §§ 7002(a) and 7002(b)(1).
2. Petitioner (herein Mr. Harris) is unlawfully detained and restrained of his liberty at
Eric M. Taylor Center, 10-10 Hazen Street, East Elmhurst NY 11370.
3. Mr. Harris is detained on New York Department of Corrections and Community
Supervision (“DOCCS”) Warrant No. 802148. The detention order is retained by the Department
of Correction and Petitioner does not have access to it. As a result, Petitioner is unable to attach a
copy of the mandate under which Mr. Harris is detained.
4. Petitioner seeks a writ of habeas corpus on the grounds that DOCCS has violated
his right to due process by failing to provide him with a timely preliminary hearing thereby causing
his unlawful imprisonment.
1 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
5. A habeas proceeding is by statute an emergency special proceeding designed to
protect the liberty interests of the residents of New York State. See CPLR § 7001. Pursuant to
CPLR § 7008, Respondents’ return is due upon the hearing of the writ.
JURISDICTION
6. The CPLR has deemed habeas corpus a “special proceeding” that mirrors the
common law writs used to “inquire into detention” CPLR § 7001. Section 7002 of the Civil
Practice Laws and Rules describes the contents of a petition and to whom it shall be made.
Generally, petitions can be made to “any justice of the supreme court.” See CPLR § 7002(b). Upon
review by a justice of the supreme court, the writ shall issue unless the justice determines that there
is no allegation of unlawful detention or that the detention is pursuant to a federal authority. CPLR
§ 7003(a).
7. Once the justice issues the writ, they must make it “returnable . . . on any day or
time certain” for a hearing on the matter “in the county where it was issued.” CPLR § 7004(c);
CPLR § 7004(d). The writ shall be served on the parties alleged to have custody of the petitioner,
who “shall make a return to it” and, if required, bring the detained person to a hearing on the date
specified in the writ. CPLR § 7004; CPLR § 7006(a).
8. Here, in accordance with the statute, the petition was filed in Bronx County Civil
Supreme Court, the county in which Mr. Harris was detained. At the time of filing, Petitioner was
detained in Bronx County exclusively on the civil parole matter, and therefore jurisdiction is proper
under CPLR § 7002(b)(1) and CPLR § 7004(c). See also People ex rel. Eraso o.b.o. Robinson v.
Annucci, Index No. 810791/2022e, slip op. at 3 n.1 (Sup. Ct. Bronx Cnty. Aug. 10, 2022) (Lewis,
J.).
FACTUAL HISTORY
2 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
9. Mr. Harris was released back to Community Supervision on or about August 1st,
2023. See Ex. A, Violation of Release Report (“VORR”).
10. DOCCS executed parole violation Warrant No. 802130 (“first warrant”) on
November 6, 2023, and Petitioner was arrested. A recognizance hearing was held on November
7th, 2023, and Mr. Harris was ordered remanded. On November 13th, 2023, a preliminary hearing
was held, and a preponderance of the evidence was found that Mr. Harris violated a condition of
parole. On November 15th, 2023, Mr. Harris was released pursuant to a writ of habeas corpus
under Index #818107/2023E. See Ex. B, Release Order Dated November 15, 2023.
11. On December 16th, 2023, DOCCS executed Warrant No. 802141 (“second
warrant”) and Petitioner was arrested. A recognizance hearing was held on December 17th, 2023,
and Petitioner was ordered remanded. At the conclusion of the recognizance hearing, DOCCS
issued a 9015-form stating that a final hearing would be held on December 21st, 2023, and
indicating that a preliminary hearing has not been scheduled. No preliminary hearing was held in
connection with the second warrant. On January 4th, 2024, Mr. Harris was ordered released, the
second warrant vacated, and the charges associated with second warrant dismissed through a writ
of habeas corpus under Index #820159/2023E. See Ex. C, Release Order Dated January 4, 2024.
12. On January 31st, 2024, DOCCS issued Warrant No. 802144 (“third warrant”). A
recognizance hearing was held on February 1, 2024, and Petitioner was ordered remanded. No
preliminary hearing was held in connection to the third warrant. On February 8, 2024, Mr. Harris
was ordered released, the third warrant vacated, and the charges associated with the third warrant
dismissed through a writ of habeas corpus under Index #802052-2024E. See Ex. D, Release Order
Dated February 8, 2024.
3 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
13. On February 27, 2024, DOCCS issued Warrant No. 802148 (“current warrant”).
See Ex. E, Warrant No. 802148; See Ex. F, Supplementary Violation of Release Report
(“SVORR”) 5 Under Warrant No. 802148. This current warrant was executed on February 28,
2024. See Ex. G, ILS Screenshot. A recognizance hearing was held on March 2, 2024 and
Petitioner was ordered remanded. The last day to hold a preliminary hearing in accordance with
the Executive Law was March 4, 2024. See N.Y. Exec. Law § 259-i(3)(c)(i)(B). At the time of
filing no preliminary hearing has been held.
ARGUMENT
Petitioner Has Been Denied a Timely Preliminary Hearing on The Current warrant
14. The Executive Law requires that “[f]or any alleged violation for which a court
issued an order detaining a person, within five days of the issuance of such order to detain or
execution of a warrant for the violation, the department shall afford such person a preliminary
hearing before a hearing officer designated by the department.” N.Y. Exec. Law § 259-
i(3)(c)(i)(B); see also People ex rel. Lewis v. NYS Div. of Parole, Index No. 250810-12, 36
Misc.3d 1212(A) (Sup. Ct. Bronx Cnty. 2012) (granting writ based on violation of time
requirement); People ex rel. Johnson v. NYS Div. Of Parole, 539 N.Y.S.2d 349 (1st Dep’t 1989);
People ex rel. Eng v. Coughlin, 490 N.Y.S.2d 341 (3d Dep’t 1985); People ex rel. Austin v. NYS
Div. Of Parole, 477 N.Y.S.2d 71 (2d Dep’t 1984).
15. In the present case, the current warrant was executed on February 28, 2024. See
Exhibit G, ILS Screenshot. DOCCS provided a recognizance hearing on March 2, 2024, beyond
the requisite 24-hour period under Executive Law 259-i(3)(a)(iv), where he was ordered remanded.
Therefore, the final day for DOCCS to afford Mr. Harris a preliminary hearing was March 4, 2024.
Inexplicably, DOCCS failed to provide a preliminary hearing. In fact, at the time of filing, it has
not even scheduled a preliminary hearing for Mr. Harris in connection with the current warrant.
4 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
16. Although the charges on the current warrant are described by DOCCS as
“supplemental charges,” these charges are nonetheless part of a new warrant: Warrant No. 802148.
See Ex. F, SVORR 5 under Warrant No. 802148. Accordingly, as this Court has held, Executive
Law § 259-i(3)(c)(i)(B) imposes a plain text requirement that DOCCS afford Mr. Harris a
preliminary hearing. See People ex rel. Oshintayo v. Annucci, Index No. 804872-23 (Sup. Ct.
Bronx Cnty. May 8, 2023) (available upon request); People ex rel. Dawes v. Annucci, Index No.
804874-2023E (Sup. Ct. Bronx Cnty. May 8, 2023); People ex rel. Barreto v. Annucci, Index No.
802786-2023E (Sup. Ct. Bronx Cnty. May 26, 2023).
17. A failure by DOCCS to conduct a preliminary hearing within five days of execution
of the warrant requires that the warrant be vacated, and the person reinstated to parole supervision.
See People ex rel. Melendez v. Warden, 214 A.D.2d 301 (1st Dep’t 1995); People ex rel. Levy v.
Dalsheim, 66 A.D.2d 827, 828 (2d Dep’t 1978) (finding that where DOCCS fails to conduct timely
hearing, vacatur of warrant and reinstatement to parole is the only appropriate remedy).
18. Here, five days have passed and no preliminary hearing has been held, nor has one
even been scheduled. As a result, the warrant must be vacated, the delinquency cancelled, and Mr.
Harris restored to supervision with respect to this matter.
Respondents’ Return Must be Filed at the Time and Place Specified in the Writ in
Accordance with CPLR Article 70
19. The writ of habeas corpus has historically been viewed as so precious that
Alexander Hamilton once called it the “bulwark” of individual liberty.” Hamilton, A., The
Federalist No. 84 (Clinton Rossiter ed. 1961). Habeas corpus is enshrined in Article I of the United
States Constitution. U.S. Const. art. I., § 9, cl. 2 (“The privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require
it.”). New York’s Constitution mimics the federal provisions. N.Y. Const. art. 1, § 4; see also
5 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 501 (1969) (recognizing “the constitutional access
to the writ of habeas corpus”). The CPLR has deemed habeas corpus a “special proceeding” that
mirrors the common law writs used to “inquire into detention” CPLR § 7001.
20. CPLR § 7004 governs where a writ may be made “returnable,” meaning where it
may be heard. Subsection (d) states that “The writ may be made returnable forthwith or on any
day or time certain as they case requires.” CPLR § 7008 governs “returns,” which is what the
habeas statute calls a respondent’s papers. It states that “[t]he return shall consist of an affidavit to
be served in the same manner as an answer to a special proceeding and filed at the time and place
specified in the writ.” CPLR § 7008 (emphasis added). CPLR § 7009 makes clear that petitioners
may respond to the return in writing or orally at the hearing. CPLR § 7009(b). The CPLR does not
contemplate additional proceedings beyond the initial summary hearing without the consent of the
parties. See CPLR § 7009(c) (providing that “[t]he court shall proceed in a summary manner”).
21. Once a claim is properly before the habeas court, CPLR § 7009(c) makes clear that
any hearing on a writ of habeas corpus is to be conducted on an expedited basis via a summary
hearing. CPLR § 7009 (McKinney Practice Commentaries). The summary nature of the hearing
permits the relaxed rules of evidence; it need only require non-hearsay evidence or cross-
examination of witnesses if the petitioner demands it. Id.; see also People ex rel. Holliman v.
Conboy, 37 A.D.2d 1034 (3d Dep’t) (1971); People ex rel. Daniels v. Johnston, 28 A.D.2d 999
(2d Dep’t) (1967). Here petitioner made no such request and the facts at issue are clear from the
record before the Court. No evidentiary hearing need be conducted in this case.
22. In order for an extension to a Judicially imposed deadline in a habeas proceeding
to be properly granted, respondent must meet two conditions: (1) that there was an extenuating
circumstance beyond respondent’s control and (2) demonstrate that petitioner would not be
6 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
prejudiced by the delay. See People ex rel. Vanderburgh v. Coombe, 102 A.D.2d 951, (1984).
There, the Third Department held that granting a 15 day extension was not error where the
Attorney General’s office in the area had recently been shuttered and petitioner had not been
prejudiced.
23. Here, Petitioner would be severely prejudiced by a continued unlawful detention in
the violent, dangerous, and unconstitutional conditions in the New York City Department of
Corrections.1 This Court has previously recognized that the conditions in which a person is held
were relevant to a delay related to holding a preliminary hearing and wrote:
A delay on vague general grounds that leave the parolee ensconced
in Rikers Island given the conditions of such incarceration verge on
the edge of Eighth Amendment violations such that a monitor
reports to a federal judge about those conditions. The news reporting
of death and squalor are enough prejudice for each detainee, who
should not have to wait in such conditions until parole gets it
together to go forward in a hearing that requires the most minimum
of proof to establish a preponderance of evidence on the charges that
they leveled in order to arrest the parolee.
People ex rel. Blount v. Annucci Index No. 802349-2023E (Sup. Ct. Bronx Cnty. Apr. 3, 2023).
24. Mr. Harris has been unlawfully incarcerated since March 4, 2024. As discussed
above, the conditions on Riker’s Island are violent and unsafe. Each day poses a risk of grave harm
to Mr. Harris. Thus, he would be highly prejudiced by a continued deprivation of his liberty and
the Attorney General would have suffered no injury or prejudice whatsoever.
1Bromwich, Jonah E., NYT: Judge Casts Doubt on New York City’s Ability to Run Rikers Island Jails, N.Y TIMES (June
13, 2023, 4:36 p.m.), available at https://www.nytimes.com/2023/06/13/nyregion/rikers-hearing-
doc.html?smid=nytcore-ios-share&referringSource=articleShare.
7 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
25. Additionally, there has been no good excuse or reason provided for any need for
delay on the part of the Attorney Genera aside from administrative challenges. See Vanderburgh,
477 N.Y.S.2d 797. This Court has also rejected that excuse writing:
Because we are guided by statute and not historical practices, and
the statute states that when the writ is returnable forthwith, it should
be returned withing 24 hours of its service. The office of the
Attorney General complains that the return time is too great a burden
because not enough staff is assigned to the division. It seems to
ignore tha the writ of habeas corpus is brought to fre persons from
unlawful incarceration. The office seeks to advance their
administrative convenience over the rights of Petitioners possibly
illegally detained . . . Repsondents do not explain why they have not
sought to meet the requirement to seek an adjournment by proving
that there was an extenuating circumstance beyond their control and
demonstrate that Petitioner would not be prejudiced by the delay.
People ex rel. Robinson v. Annucci Index No. 810791-2022e (Sup. Ct. Bronx Cnty. Aug. 10,
2022).
26. Should the Attorney General choose not to abide by the statue and file a return by
the date of the CPLR § 7009 hearing return date specified in the writ, this Court should accept all
uncontroverted allegations in the petition as uncontested. This action would not be without
precedent. In a Bronx County Supreme Court case related to a parole matter, the court specifically
addressed a scenario in which past practice did not align with the statutory directive. People ex rel.
Bernard v. Ashworth, 43 N.Y.S.2d 366, 368 (Sup. Ct. Bronx Cnty. 1943). The court held that,
despite past practice, the Attorney General must adhere to “appropriate practice and procedure in
habeas corpus proceedings,” and noted custom “cannot justify or excuse the departure [from the
habeas statutes rules governing returns]. A habeas corpus proceeding is as much a lawsuit as any
other litigation and there must be adherence to . . . forms and modes of procedure and there can be
no proper and orderly administration of justice without them.” Id. As a result, the court accepted
all uncontroverted allegations in the petitions.
8 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
27. Petitioner respectfully requests that the Attorney General’s office strictly abide by
the statutory and judicial directives explained herein. Should it fail to do so, Petitioner requests
that this Court accept Petitioner’s arguments as uncontroverted and release him.
28. Petitioner has not been committed and is not detained by virtue of any judgment,
decree, final order or process of mandate issued by a court or judge of the United States in a case
where such court or judge has exclusive jurisdiction to order him released.
29. Petitioner is not detained by virtue of any final judgment or decree of a competent
tribunal or civil or criminal jurisdiction. Petitioner has no other holds.
30. Petitioner has made no prior application for the relief requested herein.
31. Petitioner has not filed an appeal.
WHEREFORE, Petitioner requests that this Court grant the Petition and order
Petitioner’s immediate release and on the grounds that his continued detention violates his
constitutional right to due process.
Respectfully Submitted,
Dated: New York, New York
March 4, 2024
/s/ Abigail Sloan
____________________________
TWYLA CARTER
Attorney-in-Chief
The Legal Aid Society
Attorney for Petitioner
199 Water Street
New York, NY 10038
Abigail Sloan
Law Graduate
Practicing Under Supervision
Parole Revocation Defense Unit
Legal Aid Society
646-618-0471
9 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
asloan@legal-aid.org
/s/ Lorraine McEvilley
Director
Parole Revocation Defense Unit
Legal Aid Society
10 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
VERIFICATION
Abigail Sloan, a law graduate practicing under the supervision of LORRAINE
MCEVILLEY, an attorney admitted to practice law in the State of New York, states that she is the
relator, that she has read the foregoing petition and that same is true to her own knowledge, except
for those portions stated on information and belief, which are based on police records and court
records which she believes to be true.
Dated: March 4, 2024
BRONX, NEW YORK
TWYLA CARTER
Attorney-in-Chief
The Legal Aid Society
/s/ Abigail Sloan
___________________________
Abigail Sloan
Law Graduate
Practicing Under Supervision
Parole Revocation Defense Unit
Legal Aid Society
646-618-0471
asloan@legal-aid.org
/s/ Lorraine McEvilley
Director
Parole Revocation Defense Unit
Legal Aid Society
11 of 11
Preview
FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 SUPREME COURT OF THE STATE OF NEW YORK BRONX COUNTY PEOPLE OF THE STATE OF NEW YORK EX REL. Index No. ___________ ABIGAIL SLOAN, on behalf of Elijah Harris, Petitioner, B&C: 2412400451 NYSID: 13902888L v. Warrant No.: 802148 MZ: 200059-24BX DANIEL MARTUSCELLO, Acting Commissioner, New York State Department of Corrections and Community VERIFIED PETITION Supervision; LYNELLE MAGINLEY-LIDDIE, Commissioner, New York City Department of Correction, Respondents. 1. I, ABIGAIL SLOAN, am a law graduate practicing under the supervision of LORRAINE MCEVILLEY, an attorney admitted to practice law in the state of New York, and am associated with TWYLA CARTER, Attorney-in-Chief of the Legal Aid Society, New York, and I am the attorney of record for Elijah Harris, the petitioner herein. I make this Petition on Mr. Harris’s behalf pursuant to CPLR §§ 7002(a) and 7002(b)(1). 2. Petitioner (herein Mr. Harris) is unlawfully detained and restrained of his liberty at Eric M. Taylor Center, 10-10 Hazen Street, East Elmhurst NY 11370. 3. Mr. Harris is detained on New York Department of Corrections and Community Supervision (“DOCCS”) Warrant No. 802148. The detention order is retained by the Department of Correction and Petitioner does not have access to it. As a result, Petitioner is unable to attach a copy of the mandate under which Mr. Harris is detained. 4. Petitioner seeks a writ of habeas corpus on the grounds that DOCCS has violated his right to due process by failing to provide him with a timely preliminary hearing thereby causing his unlawful imprisonment. 1 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 5. A habeas proceeding is by statute an emergency special proceeding designed to protect the liberty interests of the residents of New York State. See CPLR § 7001. Pursuant to CPLR § 7008, Respondents’ return is due upon the hearing of the writ. JURISDICTION 6. The CPLR has deemed habeas corpus a “special proceeding” that mirrors the common law writs used to “inquire into detention” CPLR § 7001. Section 7002 of the Civil Practice Laws and Rules describes the contents of a petition and to whom it shall be made. Generally, petitions can be made to “any justice of the supreme court.” See CPLR § 7002(b). Upon review by a justice of the supreme court, the writ shall issue unless the justice determines that there is no allegation of unlawful detention or that the detention is pursuant to a federal authority. CPLR § 7003(a). 7. Once the justice issues the writ, they must make it “returnable . . . on any day or time certain” for a hearing on the matter “in the county where it was issued.” CPLR § 7004(c); CPLR § 7004(d). The writ shall be served on the parties alleged to have custody of the petitioner, who “shall make a return to it” and, if required, bring the detained person to a hearing on the date specified in the writ. CPLR § 7004; CPLR § 7006(a). 8. Here, in accordance with the statute, the petition was filed in Bronx County Civil Supreme Court, the county in which Mr. Harris was detained. At the time of filing, Petitioner was detained in Bronx County exclusively on the civil parole matter, and therefore jurisdiction is proper under CPLR § 7002(b)(1) and CPLR § 7004(c). See also People ex rel. Eraso o.b.o. Robinson v. Annucci, Index No. 810791/2022e, slip op. at 3 n.1 (Sup. Ct. Bronx Cnty. Aug. 10, 2022) (Lewis, J.). FACTUAL HISTORY 2 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 9. Mr. Harris was released back to Community Supervision on or about August 1st, 2023. See Ex. A, Violation of Release Report (“VORR”). 10. DOCCS executed parole violation Warrant No. 802130 (“first warrant”) on November 6, 2023, and Petitioner was arrested. A recognizance hearing was held on November 7th, 2023, and Mr. Harris was ordered remanded. On November 13th, 2023, a preliminary hearing was held, and a preponderance of the evidence was found that Mr. Harris violated a condition of parole. On November 15th, 2023, Mr. Harris was released pursuant to a writ of habeas corpus under Index #818107/2023E. See Ex. B, Release Order Dated November 15, 2023. 11. On December 16th, 2023, DOCCS executed Warrant No. 802141 (“second warrant”) and Petitioner was arrested. A recognizance hearing was held on December 17th, 2023, and Petitioner was ordered remanded. At the conclusion of the recognizance hearing, DOCCS issued a 9015-form stating that a final hearing would be held on December 21st, 2023, and indicating that a preliminary hearing has not been scheduled. No preliminary hearing was held in connection with the second warrant. On January 4th, 2024, Mr. Harris was ordered released, the second warrant vacated, and the charges associated with second warrant dismissed through a writ of habeas corpus under Index #820159/2023E. See Ex. C, Release Order Dated January 4, 2024. 12. On January 31st, 2024, DOCCS issued Warrant No. 802144 (“third warrant”). A recognizance hearing was held on February 1, 2024, and Petitioner was ordered remanded. No preliminary hearing was held in connection to the third warrant. On February 8, 2024, Mr. Harris was ordered released, the third warrant vacated, and the charges associated with the third warrant dismissed through a writ of habeas corpus under Index #802052-2024E. See Ex. D, Release Order Dated February 8, 2024. 3 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 13. On February 27, 2024, DOCCS issued Warrant No. 802148 (“current warrant”). See Ex. E, Warrant No. 802148; See Ex. F, Supplementary Violation of Release Report (“SVORR”) 5 Under Warrant No. 802148. This current warrant was executed on February 28, 2024. See Ex. G, ILS Screenshot. A recognizance hearing was held on March 2, 2024 and Petitioner was ordered remanded. The last day to hold a preliminary hearing in accordance with the Executive Law was March 4, 2024. See N.Y. Exec. Law § 259-i(3)(c)(i)(B). At the time of filing no preliminary hearing has been held. ARGUMENT Petitioner Has Been Denied a Timely Preliminary Hearing on The Current warrant 14. The Executive Law requires that “[f]or any alleged violation for which a court issued an order detaining a person, within five days of the issuance of such order to detain or execution of a warrant for the violation, the department shall afford such person a preliminary hearing before a hearing officer designated by the department.” N.Y. Exec. Law § 259- i(3)(c)(i)(B); see also People ex rel. Lewis v. NYS Div. of Parole, Index No. 250810-12, 36 Misc.3d 1212(A) (Sup. Ct. Bronx Cnty. 2012) (granting writ based on violation of time requirement); People ex rel. Johnson v. NYS Div. Of Parole, 539 N.Y.S.2d 349 (1st Dep’t 1989); People ex rel. Eng v. Coughlin, 490 N.Y.S.2d 341 (3d Dep’t 1985); People ex rel. Austin v. NYS Div. Of Parole, 477 N.Y.S.2d 71 (2d Dep’t 1984). 15. In the present case, the current warrant was executed on February 28, 2024. See Exhibit G, ILS Screenshot. DOCCS provided a recognizance hearing on March 2, 2024, beyond the requisite 24-hour period under Executive Law 259-i(3)(a)(iv), where he was ordered remanded. Therefore, the final day for DOCCS to afford Mr. Harris a preliminary hearing was March 4, 2024. Inexplicably, DOCCS failed to provide a preliminary hearing. In fact, at the time of filing, it has not even scheduled a preliminary hearing for Mr. Harris in connection with the current warrant. 4 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 16. Although the charges on the current warrant are described by DOCCS as “supplemental charges,” these charges are nonetheless part of a new warrant: Warrant No. 802148. See Ex. F, SVORR 5 under Warrant No. 802148. Accordingly, as this Court has held, Executive Law § 259-i(3)(c)(i)(B) imposes a plain text requirement that DOCCS afford Mr. Harris a preliminary hearing. See People ex rel. Oshintayo v. Annucci, Index No. 804872-23 (Sup. Ct. Bronx Cnty. May 8, 2023) (available upon request); People ex rel. Dawes v. Annucci, Index No. 804874-2023E (Sup. Ct. Bronx Cnty. May 8, 2023); People ex rel. Barreto v. Annucci, Index No. 802786-2023E (Sup. Ct. Bronx Cnty. May 26, 2023). 17. A failure by DOCCS to conduct a preliminary hearing within five days of execution of the warrant requires that the warrant be vacated, and the person reinstated to parole supervision. See People ex rel. Melendez v. Warden, 214 A.D.2d 301 (1st Dep’t 1995); People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, 828 (2d Dep’t 1978) (finding that where DOCCS fails to conduct timely hearing, vacatur of warrant and reinstatement to parole is the only appropriate remedy). 18. Here, five days have passed and no preliminary hearing has been held, nor has one even been scheduled. As a result, the warrant must be vacated, the delinquency cancelled, and Mr. Harris restored to supervision with respect to this matter. Respondents’ Return Must be Filed at the Time and Place Specified in the Writ in Accordance with CPLR Article 70 19. The writ of habeas corpus has historically been viewed as so precious that Alexander Hamilton once called it the “bulwark” of individual liberty.” Hamilton, A., The Federalist No. 84 (Clinton Rossiter ed. 1961). Habeas corpus is enshrined in Article I of the United States Constitution. U.S. Const. art. I., § 9, cl. 2 (“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). New York’s Constitution mimics the federal provisions. N.Y. Const. art. 1, § 4; see also 5 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 501 (1969) (recognizing “the constitutional access to the writ of habeas corpus”). The CPLR has deemed habeas corpus a “special proceeding” that mirrors the common law writs used to “inquire into detention” CPLR § 7001. 20. CPLR § 7004 governs where a writ may be made “returnable,” meaning where it may be heard. Subsection (d) states that “The writ may be made returnable forthwith or on any day or time certain as they case requires.” CPLR § 7008 governs “returns,” which is what the habeas statute calls a respondent’s papers. It states that “[t]he return shall consist of an affidavit to be served in the same manner as an answer to a special proceeding and filed at the time and place specified in the writ.” CPLR § 7008 (emphasis added). CPLR § 7009 makes clear that petitioners may respond to the return in writing or orally at the hearing. CPLR § 7009(b). The CPLR does not contemplate additional proceedings beyond the initial summary hearing without the consent of the parties. See CPLR § 7009(c) (providing that “[t]he court shall proceed in a summary manner”). 21. Once a claim is properly before the habeas court, CPLR § 7009(c) makes clear that any hearing on a writ of habeas corpus is to be conducted on an expedited basis via a summary hearing. CPLR § 7009 (McKinney Practice Commentaries). The summary nature of the hearing permits the relaxed rules of evidence; it need only require non-hearsay evidence or cross- examination of witnesses if the petitioner demands it. Id.; see also People ex rel. Holliman v. Conboy, 37 A.D.2d 1034 (3d Dep’t) (1971); People ex rel. Daniels v. Johnston, 28 A.D.2d 999 (2d Dep’t) (1967). Here petitioner made no such request and the facts at issue are clear from the record before the Court. No evidentiary hearing need be conducted in this case. 22. In order for an extension to a Judicially imposed deadline in a habeas proceeding to be properly granted, respondent must meet two conditions: (1) that there was an extenuating circumstance beyond respondent’s control and (2) demonstrate that petitioner would not be 6 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 prejudiced by the delay. See People ex rel. Vanderburgh v. Coombe, 102 A.D.2d 951, (1984). There, the Third Department held that granting a 15 day extension was not error where the Attorney General’s office in the area had recently been shuttered and petitioner had not been prejudiced. 23. Here, Petitioner would be severely prejudiced by a continued unlawful detention in the violent, dangerous, and unconstitutional conditions in the New York City Department of Corrections.1 This Court has previously recognized that the conditions in which a person is held were relevant to a delay related to holding a preliminary hearing and wrote: A delay on vague general grounds that leave the parolee ensconced in Rikers Island given the conditions of such incarceration verge on the edge of Eighth Amendment violations such that a monitor reports to a federal judge about those conditions. The news reporting of death and squalor are enough prejudice for each detainee, who should not have to wait in such conditions until parole gets it together to go forward in a hearing that requires the most minimum of proof to establish a preponderance of evidence on the charges that they leveled in order to arrest the parolee. People ex rel. Blount v. Annucci Index No. 802349-2023E (Sup. Ct. Bronx Cnty. Apr. 3, 2023). 24. Mr. Harris has been unlawfully incarcerated since March 4, 2024. As discussed above, the conditions on Riker’s Island are violent and unsafe. Each day poses a risk of grave harm to Mr. Harris. Thus, he would be highly prejudiced by a continued deprivation of his liberty and the Attorney General would have suffered no injury or prejudice whatsoever. 1Bromwich, Jonah E., NYT: Judge Casts Doubt on New York City’s Ability to Run Rikers Island Jails, N.Y TIMES (June 13, 2023, 4:36 p.m.), available at https://www.nytimes.com/2023/06/13/nyregion/rikers-hearing- doc.html?smid=nytcore-ios-share&referringSource=articleShare. 7 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 25. Additionally, there has been no good excuse or reason provided for any need for delay on the part of the Attorney Genera aside from administrative challenges. See Vanderburgh, 477 N.Y.S.2d 797. This Court has also rejected that excuse writing: Because we are guided by statute and not historical practices, and the statute states that when the writ is returnable forthwith, it should be returned withing 24 hours of its service. The office of the Attorney General complains that the return time is too great a burden because not enough staff is assigned to the division. It seems to ignore tha the writ of habeas corpus is brought to fre persons from unlawful incarceration. The office seeks to advance their administrative convenience over the rights of Petitioners possibly illegally detained . . . Repsondents do not explain why they have not sought to meet the requirement to seek an adjournment by proving that there was an extenuating circumstance beyond their control and demonstrate that Petitioner would not be prejudiced by the delay. People ex rel. Robinson v. Annucci Index No. 810791-2022e (Sup. Ct. Bronx Cnty. Aug. 10, 2022). 26. Should the Attorney General choose not to abide by the statue and file a return by the date of the CPLR § 7009 hearing return date specified in the writ, this Court should accept all uncontroverted allegations in the petition as uncontested. This action would not be without precedent. In a Bronx County Supreme Court case related to a parole matter, the court specifically addressed a scenario in which past practice did not align with the statutory directive. People ex rel. Bernard v. Ashworth, 43 N.Y.S.2d 366, 368 (Sup. Ct. Bronx Cnty. 1943). The court held that, despite past practice, the Attorney General must adhere to “appropriate practice and procedure in habeas corpus proceedings,” and noted custom “cannot justify or excuse the departure [from the habeas statutes rules governing returns]. A habeas corpus proceeding is as much a lawsuit as any other litigation and there must be adherence to . . . forms and modes of procedure and there can be no proper and orderly administration of justice without them.” Id. As a result, the court accepted all uncontroverted allegations in the petitions. 8 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 27. Petitioner respectfully requests that the Attorney General’s office strictly abide by the statutory and judicial directives explained herein. Should it fail to do so, Petitioner requests that this Court accept Petitioner’s arguments as uncontroverted and release him. 28. Petitioner has not been committed and is not detained by virtue of any judgment, decree, final order or process of mandate issued by a court or judge of the United States in a case where such court or judge has exclusive jurisdiction to order him released. 29. Petitioner is not detained by virtue of any final judgment or decree of a competent tribunal or civil or criminal jurisdiction. Petitioner has no other holds. 30. Petitioner has made no prior application for the relief requested herein. 31. Petitioner has not filed an appeal. WHEREFORE, Petitioner requests that this Court grant the Petition and order Petitioner’s immediate release and on the grounds that his continued detention violates his constitutional right to due process. Respectfully Submitted, Dated: New York, New York March 4, 2024 /s/ Abigail Sloan ____________________________ TWYLA CARTER Attorney-in-Chief The Legal Aid Society Attorney for Petitioner 199 Water Street New York, NY 10038 Abigail Sloan Law Graduate Practicing Under Supervision Parole Revocation Defense Unit Legal Aid Society 646-618-0471 9 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 asloan@legal-aid.org /s/ Lorraine McEvilley Director Parole Revocation Defense Unit Legal Aid Society 10 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 02:17 PM INDEX NO. 803632/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 VERIFICATION Abigail Sloan, a law graduate practicing under the supervision of LORRAINE MCEVILLEY, an attorney admitted to practice law in the State of New York, states that she is the relator, that she has read the foregoing petition and that same is true to her own knowledge, except for those portions stated on information and belief, which are based on police records and court records which she believes to be true. Dated: March 4, 2024 BRONX, NEW YORK TWYLA CARTER Attorney-in-Chief The Legal Aid Society /s/ Abigail Sloan ___________________________ Abigail Sloan Law Graduate Practicing Under Supervision Parole Revocation Defense Unit Legal Aid Society 646-618-0471 asloan@legal-aid.org /s/ Lorraine McEvilley Director Parole Revocation Defense Unit Legal Aid Society 11 of 11