PETITION July 16, 2024 (2024)

 
Preview
 FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 SUPREME COURT OF THE STATE OF NEW YORK BRONX COUNTY PEOPLE OF THE STATE OF NEW YORK EX REL. RACHEL LEE PINCUS, ESQ., on behalf of WAYNE Index No. ___________ KEEYLEN, B&C: 3492402309 Petitioner, NYSID: 13058393Y Warrant No.: 853011 v. VERIFIED PETITION DANIEL MARTUSCELLO, Acting Commissioner, New York State Department of Corrections and Community Supervision; LYNELLE MAGINLEY-LIDDIE, Commissioner, New York City Department of Correction, Respondents. 1. I, RACHEL LEE PINCUS, ESQ., 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 WAYNE KEEYLEN, the petitioner herein. I make this Petition on Petitioner Keeylen’s behalf pursuant to CPLR §§ 7002(a) and 7002(b)(1). 2. Petitioner (herein Petitioner Keeylen) is unlawfully detained and restrained of their liberty at the Robert N. Davoren Center (“RNDC”) at 11-11 Hazen Street in East Elmhurst, New York, 11370. 3. Petitioner Keeylen is detained on New York Department of Corrections and Community Supervision (“DOCCS”) Warrant No. 853011. See Ex. A, Securing Order. 4. Petitioner seeks a writ of habeas corpus on two grounds: (1) that DOCCS has violated his right to due process by failing to provide him with a timely preliminary hearing thereby causing his unlawful imprisonment; and (2) his/her/their incarceration is a remand order on a parole violation Warrant No. 853011 issued against Petitioner by the respondent Department of 1 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 Corrections and Community Supervision (hereinafter “DOCCS”) though their maximum sanction of incarceration has expired. 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 Petitioner Keeylen 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. 2 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 Robinson v. Annucci, Index No. 810791/2022e, slip op. at 3 n.1 (Sup. Ct. Bronx Cnty. Aug. 10, 2022) (Lewis, J.). FACTUAL HISTORY 9. Petitioner Keeylen was released back to Community Supervision on or about March 20, 2024. See Ex. B, Violation of Release Report (“VORR”). 10. On June 12, 2024, Warrant No. 853011 was executed and Petitioner Keeylen was arrested. See Ex. A, ILS Screenshot. 11. Petitioner was charges with violating Rule #1 by failing to make an arrival office report, Rule #3 by absconding, and Rule #4 by failing to discuss a change in residence. See Ex. B, VORR. The Department affirmatively stated that Petitioner Keeylen has sustained no prior violations on this term. See id. 12. On June 13, 2024, Petitioner Keeylen was served by a DOCCS parole officer with a Notice of Violation and Violation of Release Report charge sheet, and they requested a preliminary hearing. It was scheduled for June 18, 2024, 6 days from the execution of the warrant and 5 days after they were ordered remanded at the RH. See Ex. C, Notice of Violation. 13. On June 18, 2024, Petitioner Keeylen was not produced to New York County Criminal Court for his preliminary hearing before Preliminary Hearing Officer Maloff (“PHO Maloff”). Parole Revocation Specialist Pipkin (“PRS Pipkin”) appeared for the state. 14. Counsel had independently learned from Parole Revocation Defense Unit paralegals that Petitioner Keeylen was declared medically unfit by Rikers staff. Counsel was subsequently provided with an Undelivered Defendant Form “UDF,” apparently signed by a witness and not Petitioner Keeylen himself. See Ex. D, UDF. 3 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 15. Based on apparent medical isolation, Petitioner Keeylen’s case was adjourned back to the bureau for monitoring of his medical availability. See Ex. E, Preliminary Hearing Decision. 16. The warrant was executed on June 12, 2024, and the recognizance hearing was untimely held on June 13, 2024. Therefore, the preliminary hearing had to be held by June 18, 2024. As of filing on July 16, 2024, no preliminary hearing has been held or even scheduled. ARGUMENT I The Preliminary Hearing is Untimely, and Therefore Petitioner Must be Released and the DOCCS Warrant Must be Dismissed. 17. A person under parole supervision has a constitutional right to a “prompt[]” preliminary hearing. See Morrissey v. Brewer, 408 U.S. 471, 485 (1972); see also U.S. Const. amend. V, XIV; N.Y. Const. art. I, § 6. New York law requires that, if the person on parole is detained, a preliminary revocation hearing be conducted within five days of an order to detain issued at a recognizance hearing or within five days of the execution of the warrant. N.Y. Exec. Law § 259-i(3)(c)(i)(B). The requirement that parole revocation hearings be timely is “strictly construed.” People ex rel. Johnson v. N.Y. State Bd. of Parole, 71 A.D.2d 595, 595 (1st Dep’t 1979). A failure by DOCCS to conduct a preliminary hearing within five days of the order of detention or 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. Since the order to detain occurred on June 13, 2024, Petitioner Keeylen was entitled to a preliminary hearing within five days thereof, i.e., on or before June 18, 2024. Exec. L. § 259- i(3)(c)(i) and (iv). See also People ex rel. Lewis v. NYS Div. of Parole, Index No. 250810-12, 36 4 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 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). 19. Here, the order to detain occurred on June 13, 2024. The preliminary hearing was scheduled for June 18, 2024, the fifth and final date to hold the hearing. On June 18, 2024, Petitioner Keeylen was apparently declared medically isolated, his case was adjourned back to the bureau, and his preliminary hearing was never subsequently rescheduled. 20. To the extent that DOCCS is delaying the hearing as a result of a disability on Petitioner Keeylen’s part, that delay is unlawful. Under the Americans with Disabilities Act, DOCCS may not discriminate against Petitioner Keeylen on account of their actual or perceived disability by delaying the hearing more than the statutorily mandated timeframe. U.S. Department of Justice, Civil Rights Division, Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act, https://www.ada.gov/cjta.html (last accessed April 11, 2022) (hereinafter “DOJ ADA Guidance”) (“Pursuant to the ADA, state and local government criminal justice entities—including police, courts, prosecutors, public defense attorneys, jails, juvenile justice, and corrections agencies—must ensure that people with mental health disabilities . . . are treated equally in the criminal justice system and afford them equal opportunity to benefit from safe, inclusive communities.”). DOCCS was required to provide Petitioner Keeylen with a timely preliminary hearing that accommodates any disability he may have. 21. Thus, the preliminary hearing is untimely because Petitioner was not afforded a hearing within five days. Second, DOCCS’s waiting until July 16, 2024, to provide a preliminary 5 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 hearing does not constitute an effort that “energetically and scrupulously” honors Petitioner Keeylen’s right to a timely hearing. Matter of Emmick v. Enders, 107 A.D.2d 1066 (4th Dept. 1985). Affording the preliminary hearing past July 16, 2024, the thirty-third day after the order to detain cannot be deemed timely. ARGUMENT II Petitioner Must Be Released Because They Have Been Detained Beyond the Maximum Permissible Sanction for the Conduct With Which They Are Charged. 22. In September 2021, the Legislature enacted various changes pertaining to parole and community supervision, and to the revocation process, through the Less Is More Act. Various amendments were made to provisions of the Executive Law and the Penal Law. The effective date of the bulk of the provisions was March 1, 2022. 23. Consistent with the goal of reducing incarceration, the Less Is More Act (“LIM”) has specified limits on the length of sanctions for particular violations. See N.Y. Exec. Law § 259- i(3)(f)(xii). Under LIM, reincarceration is not authorized at all for certain technical violations. N.Y. Exec. Law § 259-i(3)(f)(xii)(2). For others, no reincarceration is authorized for the first and second sustained technical violation, while 7 days is permitted for the third, 15 days for the fourth, and 30 days for the fifth and subsequent violations. N.Y. Exec. Law § 259-i(3)(f)(xii)(3). For absconding, “up to seven days reincarceration may be imposed for the first violation, up to fifteen days reincarceration may be imposed for the second violation, and up to thirty days reincarceration may be imposed for the third or any subsequent violation.” Exec. Law § 259-i(3)(f)(xii)(1). If sustained at a final hearing, this would be Petitioner’s first absconding violation. See Exhibit B, VORR. 24. In order to avoid violating Petitioner’s liberty interest by excessive confinement, DOCCS was required to release Petitioner after 7 days. As a result, at this point, they are confined 6 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 beyond the 7-day maximum authorized sanction. As many courts have agreed, their release is therefore required. See People ex rel. Hayes v. Annucci, Index No. 22, 196-22 (Sup. Ct. Wyoming Cnty. June 8, 2022) (Mohun, J.); see also People ex rel. Naples v. Annucci, SMZ No. 70892-22, slip op. at 11 (Sup. Ct. Nassau Cnty. May 11, 2022) (Fink, J.) (granting the petition on these same grounds); People ex rel. Naples v. Annucci, SMZ No. 6854-22, slip op. at 8–9 (Sup. Ct. Nassau Cnty. May 16, 2022) (Fink, J.) (granting the petition on these same grounds); People ex rel. Naples v. Annucci, SMZ No. 70891-22, slip op. at 9 (Sup. Ct. Nassau Cnty. May 16, 2022) (Fink, J.) (granting the petition on these same grounds). 25. However, this in no way prevents DOCCS from proceeding against Petitioner at a final hearing if this Court finds that the Department’s failure to hold a timely preliminary hearing, or a preliminary hearing at all, is not a fatal flaw to their case. Petitioner simply may be directed to appear at their subsequent hearings if and when they is scheduled. See, e.g., Hayes, Index No. 22, 196-22; Naples, SMZ No. 70892-22. 26. Here, according to the case summary in the violation papers, Petitioner is charged with absconding. DOCCS affirmatively stated that Petitioner Keeylen has sustained no prior violations of absconding. 27. Therefore, the longest permissible period of incarceration is 7 days. A less severe sanction is permissible but a more severe one is not. 28. Sanctions, also commonly referred to as time assessments, start running from the date the warrant is executed if the releasee remains in custody. Executive Law § 259-i(3)(f)(xiii) states (emphasis added): 29. If a warrant was executed pursuant to subparagraph (iv) of paragraph (a) of this subdivision by a criminal court and the court released the person pending a preliminary or final 7 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 revocation hearing, any period of reincarceration imposed pursuant to this paragraph shall be counted from the date of issuance of a determination after a final revocation hearing that the person has violated one or more conditions of community supervision, and the time between execution of the warrant and release of the person pending a preliminary or final revocation hearing shall count toward any period of reincarceration imposed pursuant to this paragraph. 30. Petitioner has been incarcerated on an alleged parole violation since June 12, 2024. As of June 18, 2024, Petitioner has served 7 days incarceration. If Petitioner serves even an additional day of incarceration, their further detention will be in violation of Executive Law § 259- i, as well as both the federal and this state’s constitutional prohibition against “cruel and unusual punishment” (U.S. Const. amend. VIII; N.Y. Const., art. I, § 5), and rights to substantive due process (U.S. Const. amend XIV; N.Y. const. art. I, § 6). Petitioner’s immediate release is required. 31. Executive Law § 259-i(3)(f)(xii) is clear: “For absconding up to seven days reincarceration may be imposed for the first violation.” “Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning.” New York v. Patricia, 6 N.Y.3d 160, 162 (2006) (internal quotations and citations omitted) (emphasis added). 32. This Court must “give effect” to the “clear” and “plain meaning”, id., of Executive Law § 259-i(3)(f)(xii). For Petitioner’s “first [absconding] violation,” up to “seven days reincarceration may be imposed.” Id. Plainly, after the seventh day of Petitioner’s “reincarceration,” any further “reincarceration” must not be “imposed.” Id. Therefore, giving the words of the statute their plain effect, immediate release is required. 33. Any other interpretation or application of Executive Law § 259-i(3)(f)(xii) would be antithetical to the statute’s plainly stated language, and contrary to the provision’s clearly intended effect. “The courts have repeatedly rejected statutory constructions that are 8 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 unconscionable or antithetical to legislative objectives.” N.Y. State Ass'n of Crim. Def. Laws. v. Kaye, 96 N.Y.2d 512, 519 (2001); see also N.Y. Stat. Law § 143 (McKinney) ("[Legislation] should receive an interpretation which would not lead to unreasonable consequences"); N.Y. Stat. Law § 144 (McKinney) (“Statutes will not be construed as to render them ineffective.”). The sponsor memo made clear that the legislature sought to “reduce the number of people held in jail and prison in New York,” “avoid any future return to DOCCS custody,” and “limit[] the circ*mstances under which people subject to community supervision could be re-incarcerated for violations of the terms of community supervision.” It is in light of this clear, decarceral, legislative intent that the Court must interpret the statute. N.Y. Stat. Law § 92 (McKinney) (“The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature.”). 34. Clearly, the intended effect of Executive Law § 259-i(3)(f)(xii) is to authorize courts to impose a maximum of 7 days reincarceration for first-time absconding violations. Continuation of Petitioner’s remand to custody past the maximum allowable carceral term of 7 days is “antithetical” (Kaye, 96 N.Y.2d. at 519) to the statute’s language and would thereby strip it of its intended effect. See N.Y. Stat. Law § 143 (McKinney). For every day past 7 days, Petitioner is being unreasonably, excessively, and illegally punished. Immediate release is required. 35. Because Petitioner’s continued remand is in direct violation of the maximum sanction authorized by Executive Law § 259-i(3)(f)(xii), it is also in violation of the federal and this state’s constitutional prohibition against cruel and unusual punishment. Both the Eighth Amendment of the United States Constitution and Article I, Section Five of the New York State Constitution provide, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII; N.Y. Const. art. I, § 5. 9 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 36. “The infliction of punishment, particularly where its severity serves no valid penological purpose is cruel and inhuman.” People v. Askew, 66 A.D.2d 710, 711 (N.Y. 1978). Here, as previously discussed, “the infliction of punishment” of incarceration for longer than 7 days would serve “no valid penological purpose.” Id. As of June 18, 2024, Petitioner has already served the maximum allowable carceral punishment of 7 days pursuant to Executive Law § 259- i(3)(f)(xii). There is thus no “valid penological purpose” to continue to punish Petitioner where such punishment is without any legal authority and exceeds the maximum permissible punishment. 37. Detaining Petitioner beyond the maximum permissible 7 days that could be imposed for the charged violation also violates substantive due process. See Hurd v Fredenburgh, 984 F.3d 1075 (2d Cir. 2021). Substantive due process “bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.” Zinermon v. Burch, 494 U.S. 113, 125 (1990); accord United States v. Salerno, 481 U.S. 739, 746 (1987). When certain fundamental rights and liberty interests are involved, substantive due process affords heightened protection. Any infringement on a fundamental liberty interest must be narrowly tailored to serve a compelling state interest. See Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Government action that deprives persons of their liberty is subject to strict scrutiny, requiring the state to show that the infringement is narrowly tailored to serve a compelling state interest. See id. 38. Since Petitioner’s conditional liberty is at stake, the infringement must be narrowly tailored. Here, it clearly is not. Rather, Petitioner is incarcerated, and their liberty is entirely denied even though there is no longer any authorization for continued incarceration and it is wholly unnecessary. DOCCS actually has no interest here in keeping a person detained for a period that exceeds the permissible length of the punishment imposed if a violation were to be sustained. 10 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 39. While a prisoner’s interest in the conditions of confinement are necessarily limited, see Sandin v. Connor, 515 U.S. 472, 485–86 (1995), the Supreme Court has never wavered in its acknowledgment that prisoners have a fundamental liberty interest in not having the length of their sentences increased. Id. at 487. (“Nor does Connor’s situation present a case where the State’s action will inevitably affect the duration of his sentence.” (emphasis added)). 40. To the extent that the state has an interest in seeing the matter through in order to attempt to sustain the charged violation, this interest is not undermined by Petitioner’s release. Petitioner can be released and the hearing can be scheduled and conducted, with Petitioner directed to follow their parole conditions. The procedures for conducting final hearings for people who are charged but are not detained are built into Less Is More; the elimination of mandatory detention pending revocation proceedings is one of the major changes brought about by Less Is More. 41. Administrative or scheduling concerns by DOCCS may not serve to delay or deny Petitioner’s liberty. Any problems DOCCS may assert as to its ability to address and adjudicate the alleged violation in a timely manner must give way to Petitioner’s liberty right and they must be released. See, e.g., Miller v. State of New York, 124 A.D.3d 997, 999 (2015) (discussing how DOCCS does not have the authority to retain an inmate beyond the inmate’s maximum expiration date in order to finalize the terms of PRS); see also People ex rel. Green v. Superintendent, 137 A.D.3d 56, 59 (3d Dep’t 2016); Hayes, Index No. 22, 196-22; Naples, SMZ No. 70892-22; Naples, SMZ No. 6854-22; Naples, SMZ No. 70891-22. 42. Petitioner has a liberty interest in freedom from detention once their detention exceeds the time statutorily authorized as a sanction for the alleged violation. See Hurd, 984 F.3d 1075. “[S]ubstantive due process rights safeguard persons against the government’s exercise of power without any reasonable justification in the service of a legitimate governmental objective.” 11 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 Southerland v. City of New York, 680 F.3d 127, 151 (2d Cir. 2012). “[F]reedom from bodily restraint has always been at the core of the liberty protected by the due process clause from arbitrary governmental action . . . commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection”. Foucha v. Louisiana, 504 U.S. 71, 80 (1992); Hurd, 984 F.3d at 1088. 43. Petitioner has remained in jail while the State lacks any authority to continue to detain him. See Hurd, 984 F.3d at 1088. Just as no state, federal, or local authority can keep a person detained past the expiration of the sentence imposed on them, see Sample v. Diecks, 885 F. 2d 1099 (3d Cir. 1989); Calhoun v. N.Y. State Div. of Parole Officers, 999 F.2d 647 (2d Cir. 1993); Sudler v. City of New York, 689 F.3d 159, 169 (2d Cir. 2012), DOCCS cannot keep Petitioner detained beyond the period of time authorized by the legislature for a specified violation of community supervision. This is even more egregious when, as here, the detention is based only on an alleged violation, and there has been no finding that the violation was actually committed. 44. Petitioner’s status is similar to that of a pretrial detainee, as they are detained on charges that have not been established. Article I, Section 6 of the New York State Constitution prohibits unconstitutional conditions of confinement. See Cooper v. Morin, 49 N.Y.2d 69, 79 (1979). In the instant situation, the confinement is unconstitutional regardless of the specific conditions, because the length of the confinement exceeds the legal authorized period for the charged violation. To assess whether conditions of confinement are unconstitutional, “what is required is a balancing of the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement.” Id. Courts have found that under Cooper, “restrictions on the liberties of pretrial detainees [in New York’s jails] must meet the exacting standard of compelling governmental necessity in order to be sustained.” People ex rel. 12 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 Schipski v. Flood, 88 A.D.2d 197, 199 (2d Dep’t 1982) (Gabrielli, J., dissenting) (quoting Cooper, 49 N.Y.2d at 83); see also Bellony v. Chambers, 21 A.D.3d 552, 552 (2d Dep’t 2005). Here, there is no government necessity at all. Petitioner can simply be released after being detained for the maximum authorized 7 days with a direction to return for the final hearing and to comply with procedures specifically provided for by the Executive Law for individuals facing charges but are not detained. 45. This very issue has been addressed by other courts and release has been ordered. A recent decision from the Wyoming County Supreme Court granted release to the petitioner where, as here, the petitioner had been detained beyond the statutorily authorized period of incarceration for the charged absconding violation. See Hayes, Index No. 22, 196-22. The court found that “to give meaning to the limitation of the time assessment, there must be a corresponding limitation on the time that an absconder may be detained upon a warrant. That limit has been exceeded in this case.” Id. at 4. The court granted the petition “to the extent that the respondents are hereby directed to release the relator from incarceration in the Wyoming County Jail, subject to her compliance with the conditions of her parole supervision.” Id. 46. Release has been granted on these grounds in a number of cases in Nassau County as well. See, e.g., Naples, SMZ No. 70892-22; Naples, SMZ No. 6854-22; Naples, SMZ No. 70891-22. 47. As in those cases, Petitioner has been detained on the warrant beyond 7 days and they must be released. A timely final hearing may permissibly be scheduled and conducted since the charges have been neither sustained nor dismissed. 48. Accordingly, having already served their maximum carceral term, Petitioner must be immediately released, and they must be provided the opportunity to voluntarily appear at their 13 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 next parole hearing. Any other result would be unconstitutional and would violate the explicit provisions of Executive Law § 259-i. Respondents’ Return Must be Filed at the Time and Place Specified in the Writ in Accordance with CPLR Article 70 49. 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. 50. 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”). 14 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 51. 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. 52. 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 circ*mstance 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. 53. 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 1 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. 15 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 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). 54. As discussed above, the conditions on Riker’s Island are violent and unsafe. Each day poses a risk of grave harm to Petitioner Keeylen. 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. 55. Insofar as Respondents invoke administrative challenges to justify delay, this is unavailing. 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 circ*mstance 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). 56. 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. 16 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 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. 57. 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. 58. 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. 59. 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. 60. Petitioner has made no prior application for the relief] requested herein. 61. 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 their continued detention violates the Due Process Clause of the United States and New York State constitutions. Respectfully Submitted, Dated: Bronx, New York July 16, 2024 17 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 ____________________________ TWYLA CARTER Attorney-in-Chief Legal Aid Society Attorney for Petitioner 199 Water Street New York, NY 10038 Rachel Lee Pincus, Esq. Staff Attorney Parole Revocation Defense Unit Legal Aid Society Attorney for Petitioner 199 Water Street New York, NY 10038 18 of 19FILED: BRONX COUNTY CLERK 07/16/2024 10:16 AM INDEX NO. 811182/2024ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/16/2024 VERIFICATION RACHEL LEE PINCUS, an attorney admitted to practice law in the State of New York, states that they are the relator, that they have read the foregoing petition and that the same is true to their own knowledge, except for those portions stated on information and belief, which are based on police records and court records which they believe to be true. Dated: Bronx, New York July 16, 2024 . . - TWYLA CARTER Attorney-in-Chief The Legal Aid Society Rachel Lee Pincus, Esq. Staff Attorney Parole Revocation Defense Unit Legal Aid Society Attorney for Petitioner 199 Water Street New York, NY 10038 19 of 19 

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