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JKB DIN # 97-B-2746 and inmate JB DIN #96-A-4838

This proceeding was originated by the Petition for a Writ of Habeas Corpus of JKB, filed in the Franklin County Clerk’s office on 30 March 2010. Petitioner, who is an inmate at the Bare Hill Correctional Facility, purported to challenge his continued incarceration in the custody of the New York State Department of Correctional Services. More specifically, petitioner asserted that the delinquent time assessment imposed following his 5 November 2008 final parole revocation hearing expired on 17 February 2010.

On 2 April 2010, the Court issued an Order to Show Cause on and as a part thereof petitioner’s habeas corpus proceeding was converted into a proceeding for judgment pursuant to Article 78 of the CPLR. On 27 April 2010, an Amended Order to Show Cause was issued. The Court has since received and reviewed respondents’ Answer verified on 28 May 2010. By Letter Order dated 8 June 2010 petitioner’s application for judgment on default was denied.

Correspondence from petitioner in the nature of a Reply, dated 7 June 2010, was received directly in chambers on 9 June 2010.

On 10 September 1997 petitioner was sentenced in Oneida County Court, to an indeterminate sentence of 7 to 14 years, upon his conviction of the crime of Arson 2°. Petitioner was first released from DOCS custody to parole supervision in September of 2006. His parole, however, was subsequently revoked but restored at the Willard Drug Treatment Campus. Petitioner was released from Willard back to community-based parole supervision in January of 2007 but he again violated the conditions of release and was returned to DOCS custody as a parole violator.
Petitioner was most recently released to parole supervision on 11 June 2008. On 20 October 2008, however, he was served with a Notice of Violation/Violation of Release Report charging him with violating the conditions of release in 11 separate respects. The Notice of Violation/Violation of Release Report was served on petitioner at the Rensselaer County Jail where he was apparently held in connection with new criminal charges. Parole Violation Charge #5 alleged that on 17 October 2008, JB violated Rule #11 of the conditions of his release in that he was found in possession of a quantity of controlled substance, specifically, marijuana, which was found in his bedroom. A final parole revocation hearing was conducted on 5 November 2008, at which time petitioner pled guilty to Parole Violation Charge #5 and the remaining charges were withdrawn with prejudice. Petitioner’s parole was revoked and a 16-month delinquent time assessment, anticipated to expire on 17 February 2010, was imposed. In imposing such time assessment the presiding Administrative Law Judge noted that felony rape charges were pending against petitioner.

On 27 May 2009 petitioner was convicted in Justice Court, Town of Nassau, of the sex crimes of Sexual Misconduct in accordance with Penal Law §130.20(1)) and Endangering the Welfare of a Child, both misdemeanors. By reason of his Sexual Misconduct conviction, however, petitioner is a “sex offender” under the provisions of Correction Law §i68-a(i) and (2)(a)(i). It appears that petitioner was received back into DOCS custody on 25 June 2009. He was approved for re-release to parole supervision upon the expiration of his delinquent time assessment on 17 February 2010, but conditions were imposed as follows: that petitioner will propose a residence to be approved by the Division of Parole and will assist the division in any efforts it may make on petitioner’s behalf to develop an approved residence; and, that petitioner will reside only in the residence approved by the Division of Parole.

In addition to asserting that the Department of Correctional Services continues to hold him in custody “beyond its legal authority” after the expiration of the 16-month delinquent time assessment imposed following the 5 November 2008 final parole revocation hearing, petitioner suggests that DOCS officials have confused him with another inmate named “JB” , who was sentenced in Suffolk County Court on 13 June 1996 to a controlling, aggregate indeterminate sentence of 20 to 40 years upon his convictions of the crimes of Rape 1°, Sodomy 1° and Burglary 2°. In support of that suggestion, petitioner asserts that upon inquiry into his own incarceration he received, pursuant to a F.O.I.L. request, a copy of the Sentence & Commitment Order of the other “JB.”

It was held in Williams v New York State and Ahlers v New York State Division of Parole that the imposition of a special parole condition is discretionary in nature and ordinarily beyond judicial review as long as it is made in accordance with law and no positive statutory requirement is violated. If the condition is rationally related to the inmate’s past conduct and future chances of recidivism, Supreme Court has no authority to substitute its own discretion for that of the individuals in charge of designing the terms of petitioner’s parole release.

Courts have regularly applied the rationality standard in upholding special conditions requiring convicted sex offenders to secure residences approved by the Division of Parole prior to release from DOCS custody to parole supervision as in Breeden v Donelli, Lynch v West, Billups v New York State Division of Parole and Wilson v Keane.

In the case at bar, the court finds that the imposition of the suitable residence condition was rational in view of petitioner’s arson conviction with multiple parole violations, together with his recent conviction of a misdemeanor sex offense committed while under parole supervision from the arson conviction. Moreover, the court finds nothing in the petition which can be construed as a challenge to the rationality of the application of the “suitable residence” condition to any particular residence proposed by petitioner.

Finally, the Court finds nothing in the record before it to support any inference that parole officials erroneously considered the disturbing criminal record of the other “JB” when the “suitable residence” condition was imposed on petitioner. Nor is there anything in the record to suggest that information pertaining to the other “JB” was erroneously transmitted by parole officials to any person/entity considering an offer of housing to petitioner.

Although petitioner’s allegation that the wrong Sentence and Commitment Order was supplied to him in response to a F.O.I.L. request is disturbing, there is no reference to the other “JB” in the remainder of the relevant record in this proceeding. To the extent petitioner points out in his Reply that Exhibit O, annexed to respondents’ Answer, includes both his own inmate information as well as inmate information pertaining to the other “JB,” the Court notes that Exhibit O was specifically identified/labeled by counsel as “DOCS Inmate Information printout for petitioner JKB DIN # 97-B-2746 and inmate JB DIN #96-A-4838. This exhibit, illustrating respondents’ recognition of the two similarly-named inmates, should in no way be construed as indicative of any confusion on part of the respondents with respect to the separate identities of the petitioner and the other “JB.”

The court dismisses petition.

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