Preview
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
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. _________
GREGORY CHANG, on behalf of AARON FLOWERS,
Petitioner,
B&C: 8252400258
NYSID: 12143657J
v.
Warrant No.: 840533
DANIEL MARTUSCELLO, Acting Commissioner, New
VERIFIED PETITION
York State Department of Corrections and Community
Supervision; LYNELLE MAGINLEY-LIDDIE,
Commissioner, New York City Department of Correction,
Respondents.
1. I, GREGORY CHANG, am a law graduate practicing under the supervision of
LORRAINE MC EVILLEY, 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 AARON FLOWERS, the petitioner herein. I make this Petition
on Mr. Flowers’s behalf pursuant to CPLR §§ 7002(a) and 7002(b)(1).
2. Petitioner (herein Mr. Flowers) is unlawfully detained and restrained of his liberty
at Rikers Island, Eric M. Taylor Center, 10-10 Hazen Street, East Elmhurst, NY 11370.
3. Mr. Flowers is detained on New York Department of Corrections and Community
Supervision (“DOCCS”) Warrant 840533. See Ex. A, Securing Order, dated March 1, 2024.
4. Petitioner seeks a writ of habeas corpus on the grounds that DOCCS has violated
his right to due process by unlawfully issuing a warrant for his arrest, leading to his unlawful arrest.
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.
1 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
JURISDICTION
1. 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).
2. 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).
3. Here, in accordance with the statute, the petition was filed in Bronx County Civil
Supreme Court, the county in which Mr. Flowers 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
4. Mr. Flowers was released to community supervision on or about January 13, 2021.
See Ex. B, Violation of Release Report.
5. On June 27, 2022, Warrant No. 840533 was issued. See Ex. C, Warrant No. 840533.
2 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
6. On February 29, 2024, DOCCS arrested Mr. Flowers.
7. On March 1, 2024, Mr. Flowers was produced to Part 1 in Manhattan Supreme
Court for a recognizance hearing. Judge Hanshaft presided. Judge Hanshaft remanded Mr. Flowers
and scheduled his preliminary hearing for March 6, 2024. See Ex. A, Securing Order.
8. As a result, Mr. Flowers remains in custody at Riker’s Island pending his parole
revocation proceedings.
ARGUMENT
Warrant 840533 Must Be Vacated Because DOCCS Failed to Serve a Proper Notice of
Violation on Mr. Flowers Before Issuing a Warrant.
9. Warrant 840533 should be vacated because it was unlawfully issued. Where the
parole officer having charge of a releasee has probable cause to believe such releasee committed
a technical violation, DOCCS must initiate a parole revocation proceeding by issuing a notice of
violation. See Executive Law § 259-i(3)(a)(i). A technical violation is any conduct that violates
the Conditions of Release to Community Supervision in an important respect, except for the
commission of a misdemeanor or felony under the penal law. See N.Y. Exec. Law § 259(6). When
DOCCS issues the notice of violation, the releasee “shall... be given written notice of the time,
place and purpose of the preliminary hearing." See N.Y. Exec. Law § 259-i(3)(c)(iii). Such notice
is also required to state what conditions are alleged to have been violated and in what manner, and
that the releasee has the right to appear and speak on his own behalf, among many other rights. Id.
The Executive Law provides that the notice of violation:
shall be promptly served upon such person. If the releasee has failed to appear as
directed in response to a notice of violation and has failed to appear voluntarily
within forty-eight hours after such time and the person would be subject to
incarceration pursuant to subparagraph (xii) of paragraph (f) of this subdivision
should the violation be sustained at a final revocation hearing, a warrant may be
issued for the retaking of such person and for his temporary detention pending a
recognizance hearing in accordance with the rules of the board. If the person has
intentionally failed to appear as directed in response to a notice of violation and
3 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
has intentionally failed to appear voluntarily within forty-eight hours after such
time and the person would not be subject to incarceration pursuant to paragraph
(f) of this subdivision should the violation be sustained at a final revocation
hearing, no warrant shall issue and the violation shall be deemed sustained.
N.Y. Exec. Law § 259-i(3)(a)(i) (emphasis added).
10. DOCCS has the duty upon its first attempted contact with the releasee during a
parole revocation case to notify the releasee of, among other things, the charges against the releasee
and the date of the preliminary hearing. See N.Y. Exec. Law § 259-i(3)(c)(iii). Where a parole
officer only has probable cause to believe that technical violations occurred, DOCCS first attempts
contact, regarding the open revocation case, with the releasee when DOCCS attempts to serve the
notice of violation. In such cases where DOCCS does not attempt to serve a proper notice of
violation, then a recognizance hearing based on a parole warrant would never be lawfully
authorized—the technical-only parole warrant cannot lawfully detain the releasee. Hence, when
only technical violations are lawfully alleged, DOCCS has the duty of giving the releasee notice
of the preliminary hearing and of the charges against him when DOCCS serves the initial NOV.
11. By contrast, where a parole officer has probable cause to believe the releasee
committed a non-technical violation, then a “notice of violation may be issued or a warrant may
be issued.” See N.Y. Exec Law § 259-i(3)(a)(i). In such cases where (1) probable cause exists to
support the belief that a non-technical violation occurred, and (2) DOCCS issues a warrant for the
releasee’s arrest pending the revocation case, then DOCCS’s first attempted contact would
lawfully very well be at the recognizance hearing, as DOCCS could lawfully, at least initially,
detain the client on a lawful parole warrant pending the revocation case.
12. Regardless, at all recognizance hearings, “the department shall have the burden of
demonstrating to the court that the executed warrant was properly issued and served pursuant to
this section.” See N.Y. Exec. Law § 259-i(3)(a)(v).
4 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
13. Here, DOCCS failed to establish at the recognizance hearing that Warrant No.
840533 was lawfully issued because no notice of violation that was allegedly served on Mr.
Flowers was presented to the court. The charges in the VORR included only technical charges.
Accordingly, DOCCS could not issue a warrant for Mr. Flowers’s arrest until it had served a notice
of violation that satisfies the statutory requirements detailed above, including the requirement that
the NOV contain “the time, place and purpose of the preliminary hearing.” See N.Y. Exec. Law §
259-i(3)(c)(iii). At the recognizance hearing, DOCCS claimed that it served a “48 hour notice” on
Mr. Flowers at his last known address. See Ex. D, Recognizance Hearing Transcript.1 However,
this notice was not given to defense counsel nor presented to the court as evidence. Further,
DOCCS never claimed that it contained a scheduled time, place, or purpose for a preliminary
hearing.
14. The warrant was unlawfully issued also because the NOV left at Mr. Flowers’s last
known residence did not inform Mr. Flowers of the charges against him. Under Exec. Law § 259-
i(3)(c)(iii), the NOV must inform the releasee what conditions are alleged to have been violated
and in what manner. However, DOCCS did not claim that anything more than the “48-hour notice”
was left at his residence. Without a copy of the Violation of Release Report, it is impossible for
Mr. Flowers to have been given notice of the charges against him at the time that any notice was
allegedly served.
15. Accordingly, as this Court has found in the past in similar cases, the warrant was
unlawfully issued. See People ex rel. Bray v. Martuscello, Index No. 818650-2023 (Sup. Ct. Bronx
Cnty. Feb. 29, 2024) (Powell, J.) (attached as Exhibit E); People ex rel. Davey v. Martuscello,
Index No. 818094-2023 (Sup. Ct. Bronx Cnty. Dec. 4, 2023) (Villegas, J.) (available upon
1 At the time of filing, defense counsel has requested but not received the transcript.
5 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
request); People ex rel. Ridley v. Martuscello, Index No. 809800-2023 (Sup. Ct. Bronx Cnty. Nov.
1, 2023) (Michels, J.) (available upon request). The warrant should therefore be dismissed,
including all charges supplemented under Warrant no. 840533.
Respondents’ Return Must be Filed at the Time and Place Specified in the Writ in
Accordance with CPLR Article 70.
16. 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
People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 501 (1969) (recognizing “the constitutional access
to the writ of habeas corpus”). The C.P.L.R. has deemed habeas corpus a “special proceeding” that
mirrors the common law writs used to “inquire into detention” C.P.L.R. § 7001.
17. 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”).
6 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
18. 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. N.Y. C.P.L.R. 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.
19. 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
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.
20. 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
Correction.2 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
2 Bromwich, 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 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
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.
Ex. rel Blount v. Annucci Index No. 802349-2023E (Sup. Ct. Bronx Cty. April 3, 2023).
21. Mr. Flowers has been unlawfully incarcerated since February 29, 2024. As
discussed above, the conditions on Riker’s Island are violent and unsafe. Each day poses a risk of
grave harm to Mr. Flowers. 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.
22. Additionally, there has been no good excuse or reason provided for any need for
delay on the part of the Attorney General 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 that the writ of habeas corpus is brought to free persons from
unlawful incarceration. The office seeks to advance their
administrative convenience over the rights of Petitioners possibly
illegally detained . . . Respondents 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.
Ex. rel. Robinson v. Annucci Index No. 810791-2022e (Sup. Ct.
Bronx Cnty. August 10, 2022)
23. 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
8 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
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.
24. 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.
25. 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.
26. 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.
27. Petitioner has made no prior application for the relief requested herein.
28. Petitioner has not filed an appeal.
WHEREFORE, Petitioner requests that this Court grant the Petition and order that
Petitioner be released and restored to supervision, the parole warrant vacated, and the revocation
proceeding terminated on the grounds that his continued detention violates the Due Process
Clause of the United States and New York State constitutions.
Respectfully Submitted,
Dated: New York, New York
9 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
March 1, 2024
/s/ Gregory Chang
TWYLA CARTER
Attorney-in-Chief
Legal Aid Society
Attorney for Petitioner
199 Water Street
New York, NY 10038
Gregory Chang
Law Graduate
646-618-0446
Gchang@legal-aid.org
/s/ Lorraine McEvilley
Lorraine McEvilley
Director
Parole Revocation Defense Unit
Lcmcevilley@legal-aid.org
10 of 11
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024
VERIFICATION
GREGORY CHANG, a law graduate practicing under the supervision of
LORRAINE MC EVILLEY, an attorney admitted to practice law in the State of New York, states
that he is, that he has read the foregoing petition and that same is true to his, except for those
portions stated on information and belief, which are based on police records and court records
which he believes to be true.
Dated: March 1, 2024
NEW YORK, NEW YORK
TWYLA CARTER
Attorney-in-Chief
The Legal Aid Society
/s/ Gregory Chang
Gregory Chang
/s/ Lorraine McEvilley
Lorraine McEvilley
11 of 11
Preview
FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E 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. _________ GREGORY CHANG, on behalf of AARON FLOWERS, Petitioner, B&C: 8252400258 NYSID: 12143657J v. Warrant No.: 840533 DANIEL MARTUSCELLO, Acting Commissioner, New VERIFIED PETITION York State Department of Corrections and Community Supervision; LYNELLE MAGINLEY-LIDDIE, Commissioner, New York City Department of Correction, Respondents. 1. I, GREGORY CHANG, am a law graduate practicing under the supervision of LORRAINE MC EVILLEY, 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 AARON FLOWERS, the petitioner herein. I make this Petition on Mr. Flowers’s behalf pursuant to CPLR §§ 7002(a) and 7002(b)(1). 2. Petitioner (herein Mr. Flowers) is unlawfully detained and restrained of his liberty at Rikers Island, Eric M. Taylor Center, 10-10 Hazen Street, East Elmhurst, NY 11370. 3. Mr. Flowers is detained on New York Department of Corrections and Community Supervision (“DOCCS”) Warrant 840533. See Ex. A, Securing Order, dated March 1, 2024. 4. Petitioner seeks a writ of habeas corpus on the grounds that DOCCS has violated his right to due process by unlawfully issuing a warrant for his arrest, leading to his unlawful arrest. 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. 1 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 JURISDICTION 1. 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). 2. 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). 3. Here, in accordance with the statute, the petition was filed in Bronx County Civil Supreme Court, the county in which Mr. Flowers 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 4. Mr. Flowers was released to community supervision on or about January 13, 2021. See Ex. B, Violation of Release Report. 5. On June 27, 2022, Warrant No. 840533 was issued. See Ex. C, Warrant No. 840533. 2 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 6. On February 29, 2024, DOCCS arrested Mr. Flowers. 7. On March 1, 2024, Mr. Flowers was produced to Part 1 in Manhattan Supreme Court for a recognizance hearing. Judge Hanshaft presided. Judge Hanshaft remanded Mr. Flowers and scheduled his preliminary hearing for March 6, 2024. See Ex. A, Securing Order. 8. As a result, Mr. Flowers remains in custody at Riker’s Island pending his parole revocation proceedings. ARGUMENT Warrant 840533 Must Be Vacated Because DOCCS Failed to Serve a Proper Notice of Violation on Mr. Flowers Before Issuing a Warrant. 9. Warrant 840533 should be vacated because it was unlawfully issued. Where the parole officer having charge of a releasee has probable cause to believe such releasee committed a technical violation, DOCCS must initiate a parole revocation proceeding by issuing a notice of violation. See Executive Law § 259-i(3)(a)(i). A technical violation is any conduct that violates the Conditions of Release to Community Supervision in an important respect, except for the commission of a misdemeanor or felony under the penal law. See N.Y. Exec. Law § 259(6). When DOCCS issues the notice of violation, the releasee “shall... be given written notice of the time, place and purpose of the preliminary hearing." See N.Y. Exec. Law § 259-i(3)(c)(iii). Such notice is also required to state what conditions are alleged to have been violated and in what manner, and that the releasee has the right to appear and speak on his own behalf, among many other rights. Id. The Executive Law provides that the notice of violation: shall be promptly served upon such person. If the releasee has failed to appear as directed in response to a notice of violation and has failed to appear voluntarily within forty-eight hours after such time and the person would be subject to incarceration pursuant to subparagraph (xii) of paragraph (f) of this subdivision should the violation be sustained at a final revocation hearing, a warrant may be issued for the retaking of such person and for his temporary detention pending a recognizance hearing in accordance with the rules of the board. If the person has intentionally failed to appear as directed in response to a notice of violation and 3 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 has intentionally failed to appear voluntarily within forty-eight hours after such time and the person would not be subject to incarceration pursuant to paragraph (f) of this subdivision should the violation be sustained at a final revocation hearing, no warrant shall issue and the violation shall be deemed sustained. N.Y. Exec. Law § 259-i(3)(a)(i) (emphasis added). 10. DOCCS has the duty upon its first attempted contact with the releasee during a parole revocation case to notify the releasee of, among other things, the charges against the releasee and the date of the preliminary hearing. See N.Y. Exec. Law § 259-i(3)(c)(iii). Where a parole officer only has probable cause to believe that technical violations occurred, DOCCS first attempts contact, regarding the open revocation case, with the releasee when DOCCS attempts to serve the notice of violation. In such cases where DOCCS does not attempt to serve a proper notice of violation, then a recognizance hearing based on a parole warrant would never be lawfully authorized—the technical-only parole warrant cannot lawfully detain the releasee. Hence, when only technical violations are lawfully alleged, DOCCS has the duty of giving the releasee notice of the preliminary hearing and of the charges against him when DOCCS serves the initial NOV. 11. By contrast, where a parole officer has probable cause to believe the releasee committed a non-technical violation, then a “notice of violation may be issued or a warrant may be issued.” See N.Y. Exec Law § 259-i(3)(a)(i). In such cases where (1) probable cause exists to support the belief that a non-technical violation occurred, and (2) DOCCS issues a warrant for the releasee’s arrest pending the revocation case, then DOCCS’s first attempted contact would lawfully very well be at the recognizance hearing, as DOCCS could lawfully, at least initially, detain the client on a lawful parole warrant pending the revocation case. 12. Regardless, at all recognizance hearings, “the department shall have the burden of demonstrating to the court that the executed warrant was properly issued and served pursuant to this section.” See N.Y. Exec. Law § 259-i(3)(a)(v). 4 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 13. Here, DOCCS failed to establish at the recognizance hearing that Warrant No. 840533 was lawfully issued because no notice of violation that was allegedly served on Mr. Flowers was presented to the court. The charges in the VORR included only technical charges. Accordingly, DOCCS could not issue a warrant for Mr. Flowers’s arrest until it had served a notice of violation that satisfies the statutory requirements detailed above, including the requirement that the NOV contain “the time, place and purpose of the preliminary hearing.” See N.Y. Exec. Law § 259-i(3)(c)(iii). At the recognizance hearing, DOCCS claimed that it served a “48 hour notice” on Mr. Flowers at his last known address. See Ex. D, Recognizance Hearing Transcript.1 However, this notice was not given to defense counsel nor presented to the court as evidence. Further, DOCCS never claimed that it contained a scheduled time, place, or purpose for a preliminary hearing. 14. The warrant was unlawfully issued also because the NOV left at Mr. Flowers’s last known residence did not inform Mr. Flowers of the charges against him. Under Exec. Law § 259- i(3)(c)(iii), the NOV must inform the releasee what conditions are alleged to have been violated and in what manner. However, DOCCS did not claim that anything more than the “48-hour notice” was left at his residence. Without a copy of the Violation of Release Report, it is impossible for Mr. Flowers to have been given notice of the charges against him at the time that any notice was allegedly served. 15. Accordingly, as this Court has found in the past in similar cases, the warrant was unlawfully issued. See People ex rel. Bray v. Martuscello, Index No. 818650-2023 (Sup. Ct. Bronx Cnty. Feb. 29, 2024) (Powell, J.) (attached as Exhibit E); People ex rel. Davey v. Martuscello, Index No. 818094-2023 (Sup. Ct. Bronx Cnty. Dec. 4, 2023) (Villegas, J.) (available upon 1 At the time of filing, defense counsel has requested but not received the transcript. 5 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 request); People ex rel. Ridley v. Martuscello, Index No. 809800-2023 (Sup. Ct. Bronx Cnty. Nov. 1, 2023) (Michels, J.) (available upon request). The warrant should therefore be dismissed, including all charges supplemented under Warrant no. 840533. Respondents’ Return Must be Filed at the Time and Place Specified in the Writ in Accordance with CPLR Article 70. 16. 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 People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 501 (1969) (recognizing “the constitutional access to the writ of habeas corpus”). The C.P.L.R. has deemed habeas corpus a “special proceeding” that mirrors the common law writs used to “inquire into detention” C.P.L.R. § 7001. 17. 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”). 6 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 18. 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. N.Y. C.P.L.R. 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. 19. 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 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. 20. 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 Correction.2 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 2 Bromwich, 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 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 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. Ex. rel Blount v. Annucci Index No. 802349-2023E (Sup. Ct. Bronx Cty. April 3, 2023). 21. Mr. Flowers has been unlawfully incarcerated since February 29, 2024. As discussed above, the conditions on Riker’s Island are violent and unsafe. Each day poses a risk of grave harm to Mr. Flowers. 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. 22. Additionally, there has been no good excuse or reason provided for any need for delay on the part of the Attorney General 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 that the writ of habeas corpus is brought to free persons from unlawful incarceration. The office seeks to advance their administrative convenience over the rights of Petitioners possibly illegally detained . . . Respondents 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. Ex. rel. Robinson v. Annucci Index No. 810791-2022e (Sup. Ct. Bronx Cnty. August 10, 2022) 23. 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 8 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 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. 24. 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. 25. 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. 26. 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. 27. Petitioner has made no prior application for the relief requested herein. 28. Petitioner has not filed an appeal. WHEREFORE, Petitioner requests that this Court grant the Petition and order that Petitioner be released and restored to supervision, the parole warrant vacated, and the revocation proceeding terminated on the grounds that his continued detention violates the Due Process Clause of the United States and New York State constitutions. Respectfully Submitted, Dated: New York, New York 9 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 March 1, 2024 /s/ Gregory Chang TWYLA CARTER Attorney-in-Chief Legal Aid Society Attorney for Petitioner 199 Water Street New York, NY 10038 Gregory Chang Law Graduate 646-618-0446 Gchang@legal-aid.org /s/ Lorraine McEvilley Lorraine McEvilley Director Parole Revocation Defense Unit Lcmcevilley@legal-aid.org 10 of 11 FILED: BRONX COUNTY CLERK 03/04/2024 11:37 AM INDEX NO. 803618/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/04/2024 VERIFICATION GREGORY CHANG, a law graduate practicing under the supervision of LORRAINE MC EVILLEY, an attorney admitted to practice law in the State of New York, states that he is, that he has read the foregoing petition and that same is true to his, except for those portions stated on information and belief, which are based on police records and court records which he believes to be true. Dated: March 1, 2024 NEW YORK, NEW YORK TWYLA CARTER Attorney-in-Chief The Legal Aid Society /s/ Gregory Chang Gregory Chang /s/ Lorraine McEvilley Lorraine McEvilley 11 of 11