Preview
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024
SUPREME COURT OF THE STATE OF NEW YORK
BRONX COUNTY
PEOPLE OF THE STATE OF NEW YORK EX REL.
MARISA SOGHOIAN, Esq., on behalf of DEMETRIUS Index No. ___________
THOMPSON,
Petitioner, B&C: 8252400356
NYSID: 09731745R
v. Warrant No.: 843611
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, Marisa Soghoian, am 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 DEMETRIUS THOMPSON, the petitioner herein.
I make this Petition on Mr. Thompson ’s behalf pursuant to CPLR §§ 7002(a) and 7002(b)(1).
2. Petitioner (herein Mr. Thompson is unlawfully detained and restrained of his liberty
at Eric M. Taylor Center (EMTC) at 10-10 Hazen Street, East Elmhurst, NY 11370.
3. The cause or pretense of his incarceration is a remand order on a parole violation
Warrant No. 843611 issued against Petitioner by Respondent Department of Corrections and
Community Supervision (hereinafter “DOCCS”) though the warrant was unlawfully issued. See
Ex. A, Securing Order.
4. 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
1
1 of 9
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024
5. 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).
6. 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).
7. Here, in accordance with the statute, the petition was filed in Bronx County Civil
Supreme Court, the county in which Mr. Thompson 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).
FACTUAL HISTORY
8. Petitioner was last released to parole supervision from New York State custody on
December 8, 2022. See Ex. B, Violation of Release Report (“VORR”).
9. DOCCS executed parole violation Warrant No. 843611 against Petitioner on March
20, 2024. See Ex. C, ILS Screenshot.
2
2 of 9
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024
10. Petitioner was charged with Violations of rules #1, 3, 4, 13 and 14 for failing to
make office reports, discuss a change in residence, abide by his curfew and absconding. See Ex.
B, VORR. DOCCS provided no evidence of prior sustained technical violations, citing only a “new
arrest warrant” issued 02/10/2022 under “prior violations on current term” in the VORR. Id.
11. A recognizance hearing was held on March 21, 2024, and Mr. Thompson was
remanded.
12. On March 26, 2024, a preliminary hearing was held, and a preponderance of the
evidence that Mr. Thompson violated a condition of parole was found.
13. The basis for the relief requested herein is that Petitioner’s constitutional and
statutory rights have been violated. The warrant was unlawfully issued, as it alleged only technical
violations at the time of issuance. Only a notice of violation could have been lawfully issued at the
outset of the proceeding under such circumstances. See N.Y. Exec. Law § 259-i(3)(a)(i).
The Warrant Must Be Dismissed Because There Was No Authority for Its Issuance;
Warrants Are Authorized in Place of a Notice of Violation Only Where There Are Non-
Technical Charges
14. A warrant cannot be issued in the first instance for technical charges; they are
authorized instead of a notice of violation only where the charges are non-technical. Executive
Law 259-i(3)(a) and (c)(iii) outlines the procedures for issuing a warrant on a revocation of
presumptive release, parole, conditional release or post release supervision. If DOCCS “shall have
probable cause to believe that” a releasee has committed a technical violation “a written notice of
violation may be issued according to the terms of subparagraph (iii) of paragraph (c) of this
subdivision,” which provides that “[t]he alleged violator shall, at the time a notice of violation is
issued . . . , be given written notice of the time, place and purpose of the preliminary hearing.”
3
3 of 9
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024
15. 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 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)
(McKinney) (emphasis added).
16. Indeed, revocation proceeding for all technical violations must be initiated with a
notice of violation, not a warrant. A warrant may be lawfully issued only where a non-technical
violation is charged: “If the parole officer having charge of a person under community supervision
shall have probable case to believe such person has committed a non-technical violation, such
parole officer shall report such fact to a member of the board, or to any officer of the department
designated by the board, and thereupon a notice of violation maybe issue or a warrant may be
issued for the retaking of such person . . . .” N.Y. Exec. Law § 259-i(3)(a)(i)
17. In this case, DOCCS unlawfully issued and a warrant against Mr. Thompson. The
charges in the VORR were all technical. As such, DOCCS was required to first issue a notice of
violation and schedule a preliminary hearing. If Mr. Thompson had missed the preliminary hearing
and willfully failed to appear within 48 hours, then at that point—and only at that point—could
4
4 of 9
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024
DOCCS have chosen to issue and execute a warrant for Mr. Thompson’s arrest. See N.Y. Exec.
Law § 259-i(3)(a)(i). 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. 818650-23 (Sup. Ct.
Bronx Cnty. Feb. 29, 2024) (Powell, J.) (attached as Exhibit D); People ex rel. Davey v.
Martuscello, Index No. 818094-2023 (Sup. Ct. Bronx Cnty. Dec. 4, 2023) (Villegas, J.) (available
upon 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. 843611.
Respondents’ Return Must be Filed at the Time and Place Specified in the Writ in
Accordance with CPLR 7008
18. A habeas proceeding is by statute a special proceeding designed to protect the
liberty interests of the residents of New York State. See CPLR § 7001.
19. 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. See 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”).
20. At least one appellate court has implicitly recognized that should a respondent to a
writ of habeas corpus be unable to file a return by the ordered hearing date, it must ask for an
extension. See People ex rel. Vanderburgh v. Coombe, 477 N.Y.S.2d 797 (3d Dep’t 1984). There,
the Appellate Division, Third Department held that granting a 15-day extension was not error
5
5 of 9
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024
where the Attorney General’s office in the area had recently been shuttered and petitioner had not
been prejudiced.
21. Here, Petitioner would be severely prejudiced, and there is no good excuse or
reason provided for any need for delay on the part of the Attorney General. See Vanderburgh, 477
N.Y.S.2d 797. Additionally, Mr. Thompson has been unlawfully incarcerated since March 20,
2024, and the conditions on Rikers Island are violent and unsafe. 1 Each day poses a risk of grave
harm to Mr. Santana. 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. Should the Attorney General choose not to abide by the directive of the return date
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. See 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
1
See Special Report of the Nunez Independent Monitor (June 8, 2023), http://tillidgroup.com/wp-
content/uploads/2023/06/2023-06-08-Special-Report.pdf (“The current state of affairs in the jails remains alarming,
not just for the rampant violence and frequency with which force issued but because of regression in the Department’s
management of the Nunez Court Orders . . .”); Hurubie Meko, N.Y.C. Jails Chief is Hiding Dysfunction at Rikers,
Federal Monitor Says, N.Y TIMES (June 8, 2023), https://www.nytimes.com/2023/06/08/nyregion/rikers-island-jail-
report.html (“[T]he violence [at Rikers Island] remained unabated and [] officials were hiding information about it.”);
Reuven Blau, City Jails No Longer Announcing Deaths Behind Bars, Angering Watchdogs, The City (May 31, 2023,
7:03 PM EDT), https://www.thecity.nyc/2023/5/31/23744666/correction-jails-not-announcing-deaths-rikers
(discussing continued deaths in custody, now hidden from the public and monitor); Jan Ransom & Jonah E. Bromwich,
Tracking the Deaths in New York City’s Jail System, N.Y. TIMES (May 30, 2023),
https://www.nytimes.com/article/rikers-deaths-jail.html; Graham Ryaman, Rikers Island Inmate Died After Choking
on an Orange — And No Correction Officer Was There to Help: Sources, N.Y. DAILY NEWS (March 21, 2022, 1:12
PM), https://www.nydailynews.com/new-york/nyc-crime/ny-rikers-detainee-died-choked-staffing-crisis-20220321-
s6k2mmpthzf2taizl22fmauw6i-story.html.
6
6 of 9
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024
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.
23. 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.
24. 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.
25. Petitioner is not detained by virtue of any final judgment or decree of a competent
tribunal or civil or criminal jurisdiction.
26. Petitioner has made no prior application for the relief requested herein and has not
filed an appeal.
WHEREFORE, Petitioner requests that this Court grant the Petition and order that
Petitioner be released, the delinquency cancelled, the Petitioner restored to supervision because
the warrant was unlawfully issued. In the alternative, if the Court were to find that the warrant
was lawfully issued, the supplementary charges brought after the conclusion of the preliminary
hearing on the warrant should be dismissed and Petitioner released.
Respectfully Submitted,
Dated: New York, New York
March 26, 2024
/S/ Marisa Soghoian
____________________________
TWYLA CARTER
Attorney-in-Chief
The Legal Aid Society
Attorney for Petitioner
7
7 of 9
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024
199 Water Street
New York, NY 10038
Marisa Soghoian
Of Counsel
646-369-7881
MSoghoian@legal-aid.org
8
8 of 9
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024
VERIFICATION
Marisa Soghoian, 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 26, 2024
BRONX, NEW YORK
TWYLA CARTER
Attorney-in-Chief
The Legal Aid Society
/S/ Marisa Soghoian
___________________________
Marisa Soghoian, Esq.
9
9 of 9
Preview
FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024 SUPREME COURT OF THE STATE OF NEW YORK BRONX COUNTY PEOPLE OF THE STATE OF NEW YORK EX REL. MARISA SOGHOIAN, Esq., on behalf of DEMETRIUS Index No. ___________ THOMPSON, Petitioner, B&C: 8252400356 NYSID: 09731745R v. Warrant No.: 843611 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, Marisa Soghoian, am 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 DEMETRIUS THOMPSON, the petitioner herein. I make this Petition on Mr. Thompson ’s behalf pursuant to CPLR §§ 7002(a) and 7002(b)(1). 2. Petitioner (herein Mr. Thompson is unlawfully detained and restrained of his liberty at Eric M. Taylor Center (EMTC) at 10-10 Hazen Street, East Elmhurst, NY 11370. 3. The cause or pretense of his incarceration is a remand order on a parole violation Warrant No. 843611 issued against Petitioner by Respondent Department of Corrections and Community Supervision (hereinafter “DOCCS”) though the warrant was unlawfully issued. See Ex. A, Securing Order. 4. 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 1 1 of 9 FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024 5. 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). 6. 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). 7. Here, in accordance with the statute, the petition was filed in Bronx County Civil Supreme Court, the county in which Mr. Thompson 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). FACTUAL HISTORY 8. Petitioner was last released to parole supervision from New York State custody on December 8, 2022. See Ex. B, Violation of Release Report (“VORR”). 9. DOCCS executed parole violation Warrant No. 843611 against Petitioner on March 20, 2024. See Ex. C, ILS Screenshot. 2 2 of 9 FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024 10. Petitioner was charged with Violations of rules #1, 3, 4, 13 and 14 for failing to make office reports, discuss a change in residence, abide by his curfew and absconding. See Ex. B, VORR. DOCCS provided no evidence of prior sustained technical violations, citing only a “new arrest warrant” issued 02/10/2022 under “prior violations on current term” in the VORR. Id. 11. A recognizance hearing was held on March 21, 2024, and Mr. Thompson was remanded. 12. On March 26, 2024, a preliminary hearing was held, and a preponderance of the evidence that Mr. Thompson violated a condition of parole was found. 13. The basis for the relief requested herein is that Petitioner’s constitutional and statutory rights have been violated. The warrant was unlawfully issued, as it alleged only technical violations at the time of issuance. Only a notice of violation could have been lawfully issued at the outset of the proceeding under such circumstances. See N.Y. Exec. Law § 259-i(3)(a)(i). The Warrant Must Be Dismissed Because There Was No Authority for Its Issuance; Warrants Are Authorized in Place of a Notice of Violation Only Where There Are Non- Technical Charges 14. A warrant cannot be issued in the first instance for technical charges; they are authorized instead of a notice of violation only where the charges are non-technical. Executive Law 259-i(3)(a) and (c)(iii) outlines the procedures for issuing a warrant on a revocation of presumptive release, parole, conditional release or post release supervision. If DOCCS “shall have probable cause to believe that” a releasee has committed a technical violation “a written notice of violation may be issued according to the terms of subparagraph (iii) of paragraph (c) of this subdivision,” which provides that “[t]he alleged violator shall, at the time a notice of violation is issued . . . , be given written notice of the time, place and purpose of the preliminary hearing.” 3 3 of 9 FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024 15. 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 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) (McKinney) (emphasis added). 16. Indeed, revocation proceeding for all technical violations must be initiated with a notice of violation, not a warrant. A warrant may be lawfully issued only where a non-technical violation is charged: “If the parole officer having charge of a person under community supervision shall have probable case to believe such person has committed a non-technical violation, such parole officer shall report such fact to a member of the board, or to any officer of the department designated by the board, and thereupon a notice of violation maybe issue or a warrant may be issued for the retaking of such person . . . .” N.Y. Exec. Law § 259-i(3)(a)(i) 17. In this case, DOCCS unlawfully issued and a warrant against Mr. Thompson. The charges in the VORR were all technical. As such, DOCCS was required to first issue a notice of violation and schedule a preliminary hearing. If Mr. Thompson had missed the preliminary hearing and willfully failed to appear within 48 hours, then at that point—and only at that point—could 4 4 of 9 FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024 DOCCS have chosen to issue and execute a warrant for Mr. Thompson’s arrest. See N.Y. Exec. Law § 259-i(3)(a)(i). 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. 818650-23 (Sup. Ct. Bronx Cnty. Feb. 29, 2024) (Powell, J.) (attached as Exhibit D); People ex rel. Davey v. Martuscello, Index No. 818094-2023 (Sup. Ct. Bronx Cnty. Dec. 4, 2023) (Villegas, J.) (available upon 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. 843611. Respondents’ Return Must be Filed at the Time and Place Specified in the Writ in Accordance with CPLR 7008 18. A habeas proceeding is by statute a special proceeding designed to protect the liberty interests of the residents of New York State. See CPLR § 7001. 19. 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. See 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”). 20. At least one appellate court has implicitly recognized that should a respondent to a writ of habeas corpus be unable to file a return by the ordered hearing date, it must ask for an extension. See People ex rel. Vanderburgh v. Coombe, 477 N.Y.S.2d 797 (3d Dep’t 1984). There, the Appellate Division, Third Department held that granting a 15-day extension was not error 5 5 of 9 FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024 where the Attorney General’s office in the area had recently been shuttered and petitioner had not been prejudiced. 21. Here, Petitioner would be severely prejudiced, and there is no good excuse or reason provided for any need for delay on the part of the Attorney General. See Vanderburgh, 477 N.Y.S.2d 797. Additionally, Mr. Thompson has been unlawfully incarcerated since March 20, 2024, and the conditions on Rikers Island are violent and unsafe. 1 Each day poses a risk of grave harm to Mr. Santana. 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. Should the Attorney General choose not to abide by the directive of the return date 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. See 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 1 See Special Report of the Nunez Independent Monitor (June 8, 2023), http://tillidgroup.com/wp- content/uploads/2023/06/2023-06-08-Special-Report.pdf (“The current state of affairs in the jails remains alarming, not just for the rampant violence and frequency with which force issued but because of regression in the Department’s management of the Nunez Court Orders . . .”); Hurubie Meko, N.Y.C. Jails Chief is Hiding Dysfunction at Rikers, Federal Monitor Says, N.Y TIMES (June 8, 2023), https://www.nytimes.com/2023/06/08/nyregion/rikers-island-jail- report.html (“[T]he violence [at Rikers Island] remained unabated and [] officials were hiding information about it.”); Reuven Blau, City Jails No Longer Announcing Deaths Behind Bars, Angering Watchdogs, The City (May 31, 2023, 7:03 PM EDT), https://www.thecity.nyc/2023/5/31/23744666/correction-jails-not-announcing-deaths-rikers (discussing continued deaths in custody, now hidden from the public and monitor); Jan Ransom & Jonah E. Bromwich, Tracking the Deaths in New York City’s Jail System, N.Y. TIMES (May 30, 2023), https://www.nytimes.com/article/rikers-deaths-jail.html; Graham Ryaman, Rikers Island Inmate Died After Choking on an Orange — And No Correction Officer Was There to Help: Sources, N.Y. DAILY NEWS (March 21, 2022, 1:12 PM), https://www.nydailynews.com/new-york/nyc-crime/ny-rikers-detainee-died-choked-staffing-crisis-20220321- s6k2mmpthzf2taizl22fmauw6i-story.html. 6 6 of 9 FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024 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. 23. 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. 24. 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. 25. Petitioner is not detained by virtue of any final judgment or decree of a competent tribunal or civil or criminal jurisdiction. 26. Petitioner has made no prior application for the relief requested herein and has not filed an appeal. WHEREFORE, Petitioner requests that this Court grant the Petition and order that Petitioner be released, the delinquency cancelled, the Petitioner restored to supervision because the warrant was unlawfully issued. In the alternative, if the Court were to find that the warrant was lawfully issued, the supplementary charges brought after the conclusion of the preliminary hearing on the warrant should be dismissed and Petitioner released. Respectfully Submitted, Dated: New York, New York March 26, 2024 /S/ Marisa Soghoian ____________________________ TWYLA CARTER Attorney-in-Chief The Legal Aid Society Attorney for Petitioner 7 7 of 9 FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024 199 Water Street New York, NY 10038 Marisa Soghoian Of Counsel 646-369-7881 MSoghoian@legal-aid.org 8 8 of 9 FILED: BRONX COUNTY CLERK 03/26/2024 10:29 AM INDEX NO. 804951/2024E NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 03/26/2024 VERIFICATION Marisa Soghoian, 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 26, 2024 BRONX, NEW YORK TWYLA CARTER Attorney-in-Chief The Legal Aid Society /S/ Marisa Soghoian ___________________________ Marisa Soghoian, Esq. 9 9 of 9