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`PAR
`NYSCEF DOC. NO. 7
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`INDEX NO. 811979/2023E
`8t9t2023
`RECEIVED NYSCEF: 08/14/2023
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`PW
`
`SUPREME COURT OF THE STATE OF NEW YOR]
`COUNTY OF BRONX
`PART BI & PART 82
`
`ESQ McINTYRE
`
`THE PEOPLE OF THE STATE OF NEW YORK,
`ex rel.
`
`JIOVANI
`24t230t595
`
`SANCHEZ
`
`Relator,
`
`811979-23
`
`IN DEX
`
`YEAR
`
`agsinsl
`
`.
`
`Present:
`
`NYS DIVISION OF PAROLE
`Warden of the
`Penitentiary of the City of New York, Rikers lsland, New York
`
`Hon.
`
`Defendant. :
`
`Juslice.
`
`The following pap€rs used on this proceeding:
`
`Pap€rs
`Numbered
`
`Petition
`
`Writ of Habeas Corpus
`
`Return to Writ of Habeas Corpus
`
`Exhibit Copy of Commitment
`
`Exhibit Copy of Complaint
`
`Traverse to Retuen
`
`Stenographer's Minu
`
`Upon the foregoing papers and the hearing and proceedings had, this writ is
`
`SUSTAINED
`
`dismissed
`adjourned to
`decision is rese
`sustained
`
`and the inmate
`
`See opinion.
`
`o,r"a At[092023 ,zo
`
`Peoplc's Brief
`
`Relator's Bricf
`
`1 of 34
`
`llfr
`
`is remanded.
`
`J.S.C
`
`

`

`FILED: BRONX COUNTY CLERK 08/14/2023 12:11 PM
`NYSCEF DOC. NO. 7
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`INDEX NO. 811979/2023E
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`RECEIVED NYSCEF: 08/14/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`BRONX COUNTY
`
`PEOPLE OF THE STATE OF NEW YORK EX REL
`LEEANNE MCINTYRE, Esq., on behalf of Jiovani
`Sanchez,
`
`Petitioner,
`
`Index No. 811979-23
`
`B&C:2412301595
`NYSID: 13664803K
`Warrant No.: 829461
`MZ:200174-238X
`
`DANIEL MARTUSCELLO, Acting Commissioner, New
`York State Department of Corrections and Community
`Supervision; LOUIS MOLINA, Commissioner, New York
`City Department of Correction;
`
`RELEASE ORDER ON WRIT
`OF HABEAS CORPUS
`
`ndents.
`
`This petition is
`
`CRANTED
`
`DENIED
`
`Petitioner is ordered released on parole warrant 829461 .
`
`It is further ordered that the recognizance hearing securing order is cancelled and petitioner s&a// 6e
`releosed under the existing parole ll/arrant No.829461, unless Petitioner is subject to a commitment
`or other warrant not predicated upon the alleged violation of parole. Petitioner is to be released from
`the custody ofthe Respondent, Commissioner Molina, and released to parole supervision under the
`same conditions heretofore in effect.
`
`It is further ordered that prior to release Respondent Commissioner Molina shall first
`provide DOCCS the opportunity to give Petitioner reporting instructions in person by a parole
`officer; provided however that in no event shall lhe release take place more than 24 hour from
`receipt of this order. Petitioner shall contact his parole officer immediately upon his release for
`instructions regarding his next reporting date and other matters conceming his supervision.
`
`It is further ordered that Petitioner shall appear at his next scheduled court appearance on
`on proceedings, if any
`all criminal proceedings currently pending, as well as any parole rev
`
`So ordered.
`
`Dated: [[J90920?3
`County of Bronx
`
`HON.
`
`RI RUTH MICHELS. A.J.S.C.
`
`Shari Rutr Micfi€ls A"J.S.C.
`
`2 of 34
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`

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`FILED: BRONX COUNTY CLERK 08/14/2023 12:11 PM
` FILED: _BRONX COUNTY CLERK 08/14/2023 12:11 P
`NYSCEF DOC. NO. 7
`C
`RRONK COUNTY CLERK 08/07/
`NYSCEF DOC. NO.
`2
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`INDEX NO. 811979/2023E
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`INDEX NO. 811979/2023E
`RECEIVED NYSCEF: 08/14/2023
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`RECENPES NOschELIOY/AWAH 23
`RECEIVED NYSCEF: 08/07/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`BRONX COUNTY
`
`IndexNo._SUIT|20232
`
`
`PEOPLE OF THE STATE OF NEW YORKEX REL.
`
`LEEANNE MCINTYRE,Esq., on behalf of Jiovani
`Sanchez,
`
`Petitioner,
`
`V.
`
`
`
`
`
`
`DANIEL MARTUSCELLO, Acting Commissioner, New
`York State Departmentof Corrections and Community
`
`Supervision; LOUIS MOLINA, Commissioner, New York
`
`City Department of Correction,
`
`
`B&C: 2412301595
`NYSID: 13664803K
`Warrant No.: 829461
`MZ: 200174-23BX
`
`WRIT OF HABEAS CORPUS
`
`Respondents.
`
`THE PEOPLE OF THE STATE OF NEW YORK
`
`TO THE PEOPLE OF THE STATE OF NEW YORK
`AND THE COMMISSIONER, NEW YORK CITY
`DEPARTMENT OF CORRECTION:
`
`WE COMMANDYOU,that you havethe bodyof Petitioner namedin the Verified Petition
`
`attached hereto, by you imprisoned anddetained,asit is said, together with the time and cause of
`
`such imprisonment and detention, by whatsoever name that said Petitioner shall be called or
` theSCA
`of the Supreme Court, Bronx,to be held in the
`charged, before the Justice presiding atPart —_
`at (0:00AM
`Courthouse at 265 East 161° St, County of Bronx, on
`ust
`; 2022,to do and receive what
`shall then and there be considered concerning the said PETITIONERpursuant to CPLR § 7009.
`
`Andhave youthen andthere this writ.
`
`Petitioner waives production for this writ.
`
`IT IS FURTHER ORDEREDthatservice of a copyof this order, together with the petition
`
`
`
`upon which it is based, on the Attorney General by email on—er—before-———-_
`
`; 2023shall be deemedsufficient service.
`
`
`
`1 of 2
`3 of 34
`3 of 34
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`INDEX NO. 811979/2023E
`FILED: BRONX COUNTY CLERK 08/14/2023 12:11 PM
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`INDEX NO. 811979/2023E
`FILED: BRONX COUNTY CLERK 08/14/2023 12:11 P
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`wieBRONXCOUNTYCLERK08/07/202310:22AM RECEIVER NOscbhht? bYAF23
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`NYSCEF DOC. NO. 7
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`NYSCEF DOC. NO.
`RECEIVED NYSCEF: 08/07/2023
`2
`
`VERONICA HUMMEL
`WITNESS, Honorable___
`the Supreme Court of the State of New York,this “|
`day of
`
`
`
`, one of the Justices of
`
`Que , 2023
`
`By the Court Clerk
`
`Theabovewritallowedthis )dayof east
`
`Justice
`of the S
`Court
`oftheState ofNewYork
`VERONICA HUMMEL
`
`,2022,
`
`.
`Lt | +] 2023
`
`2 of 2
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`4 of 34
`4 of 34
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`FILED: BRONX COUNTY CLERK 08/07/2023 10:22 AMFILED: BRONX COUNTY CLERK 08/14/2023 12:11 PM
`
`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 7
`
`
`
`INDEX NO. 811979/2023EINDEX NO. 811979/2023E
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`
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`RECEIVED NYSCEF: 08/07/2023RECEIVED NYSCEF: 08/14/2023
`
`SUPREME COURT OF THE STATE OF NEW YORK
`BRONX COUNTY
`
`PEOPLE OF THE STATE OF NEW YORK EX REL.
`LEEANNE MCINTYRE , Esq., on behalf of Jiovani
`Sanchez,
`
`
`Petitioner,
`
`v.
`
`
`
`
`DANIEL MARTUSCELLO, Acting Commissioner, New
`York State Department of Corrections and Community
`Supervision; LOUIS MOLINA, Commissioner, New York
`City Department of Correction,
`
`
`Index No. ___________
`
`
`B&C: 2412301595
`NYSID: 13664803K
`Warrant No.: 829461
`MZ: 200174-23BX
`
`VERIFIED PETITION
`
`
`
`
`
`
`
`
`
`
`1.
`
`Respondents.
`
`
`
`
`
`
`
`
`
`
`
`
`I, Leeanne McIntyre, 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 JIOVANNI SANCHEZ, the petitioner herein. I
`
`make this Petition on Mr. Sanchez’s behalf pursuant to CPLR §§ 7002(a) and 7002(b)(1).
`
`2.
`
`Petitioner (herein Mr. Sanchez) is unlawfully detained and restrained of his liberty
`
`at Eric M. Taylor Center, 10-10 Hazen Street, East Elmhurst NY 11370.
`
`3.
`
`Mr. Sanchez is detained on New York Department of Corrections and Community
`
`Supervision (“DOCCS”) Warrant No. 829461 based on conduct which would constitute a
`
`misdemeanor for which Mr. Sanchez is also facing charges in Bronx County under CR-015525-
`
`23BX. See Ex. A, Violation of Release Report; See Ex. B, Securing Order.
`
`4.
`
`Mr. Sanchez paid bail on CR-015525-23BX on or about August 4, 2023. Pursuant
`
`to Executive Law § 259-i(3)(a)(viii), he “shall not be detained further based solely on the warrant
`
`issued by the department.” Nonetheless, DOCCS continues to hold Mr. Sanchez and has not lifted
`
`the aforementioned warrant, resulting in Mr. Sanchez’s illegal detention.
`
`
`
`1 of 165 of 34
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`FILED: BRONX COUNTY CLERK 08/07/2023 10:22 AMFILED: BRONX COUNTY CLERK 08/14/2023 12:11 PM
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`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 7
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`JURISDICTION
`
`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. Sanchez 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
`
`8.
`
`Mr. Sanchez was arraigned on criminal case CR-015525-23BX before the
`
`Honorable Jessica I. Flores in Bronx Criminal Court on July 17, 2023 and bail was set at $1.00
`
`cash.
`
`
`
`2 of 166 of 34
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`

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`FILED: BRONX COUNTY CLERK 08/07/2023 10:22 AMFILED: BRONX COUNTY CLERK 08/14/2023 12:11 PM
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`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 7
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`9.
`
`Also on July 17, 2023, a recognizance hearing was held, and Mr. Sanchez was
`
`ordered remanded.
`
`10.
`
`11.
`
`On August 4, 2023, bail was paid. See Ex. C, Bail Receipt.
`
`Despite having paid bail, which mandates release under Executive Law § 259-
`
`i(3)(a)(viii), Mr. Sanchez remains unlawfully incarcerated pursuant to DOCCS Warrant No.
`
`829461. See Ex. D, ILS Screenshot.
`
`ARGUMENT
`
`Bail has Been Paid, and Therefore Petitioner Must Be Released on the DOCCS Warrant
`
`After years of effort by community members, including people directly impacted
`
`12.
`
`by New York’s unduly harsh system of parole,1 the State Legislature passed the Less is More Act.
`
`Later that year, in the midst of and in direct response to,2 a crisis of death,3 violence,4 and horrific
`
`conditions5 (none of which have “abated”6), Governor Hochul signed Less is More into law. The
`
`
`1 Less is More Supporting Letter, https://lessismoreny.org/wp-content/uploads/2022/03/Supporting-Letter-Less-is-
`More-3.3.22.pdf.
`2 Tiffany Cusaac Smith, Hochul Signs Less is More Act While Evoking Rikers Island Jail Crisis, Attica Uprising,
`Lohud.com (Sept. 17, 2021), https://www.lohud.com/story/news/2021/09/17/hochul-signs-less-more-act-amid-crisis-
`uprising-rikers-island-jail/8377598002/.
`3 Jonah E. Bromwich & Jan Ransom, 3 N.Y.C. Detainees Die in Less Than a Week, Bringing Year’s Total to 9, N.Y.
`TIMES (June 22, 2022), https://www.nytimes.com/2022/06/22/nyregion/rikers-inmate-deaths.html; Bliss Broyard &
`Lisa Riordan Seville, Rikers: The Obituaries Fifteen People at the Jail Died in 2021. These Are Their Lives — And
`How They Came to an End, N.Y. MAG. (Dec. 27, 2021), https://nymag.com/intelligencer/article/rikers-inmates-died-
`2021.html.
`4 People ex rel. Burse v. Schiraldi, 160 N.Y.S.3d 829, 831 (Sup. Ct. N.Y. Cnty. 2021); Letter to Judge Swain from the
`Office of the Monitor (“August 24 Letter of Nunez Monitor”) at 4, Nunez v. City of New York, No. 11-cv-5845 (LTS)
`(S.D.N.Y. Aug. 24, 2021), ECF No. 378, http://tillidgroup.com/wp-content/uploads/2021/08/2021-08-24-Letter-to-
`Court-re-Conditions-FINAL.pdf.
`5 Complaint, Matter of Agnew v. N.Y.C. Dep’t of Corr., No. 813431-2021E (Sup. Ct. Bronx Cnty. Oct. 4, 2021);
`Reuven Blau, Rikers Detainee Endured ‘Horrible Conditions’ Before Dying in Cell, Jails Overseer Finds, CITY (Aug.
`1, 2021, 9:17 PM), https://www.thecity.nyc/2021/8/1/22605140/rikers-island-horrible-conditions-jail-deaths.; Nick
`Pinto
`(@macfathom),
`TWITTER
`(Sept.
`13,
`2021,
`3:01
`PM),
`https://twitter.com/macfathom/status/1437491757315407878 (video of press conference).
`6 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 issed 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) (“the violence [at Rikers Island] remained unabated and [] officials
`
`
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`3 of 167 of 34
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`FILED: BRONX COUNTY CLERK 08/07/2023 10:22 AMFILED: BRONX COUNTY CLERK 08/14/2023 12:11 PM
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`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 7
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`INDEX NO. 811979/2023EINDEX NO. 811979/2023E
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`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
`
`circumstances under which people subject to community supervision could be re-incarcerated for
`
`violations of the terms of community supervision.”7 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.”).
`
`13.
`
`The relevant section of the Executive Law reads in full:
`
`If the violation charge involves conduct that would constitute a new
`felony or misdemeanor offense, such recognizance hearing may be
`held at the same time as a proceeding pursuant to article five
`hundred thirty of the criminal procedure law for any warrants issued
`by the department prior to such proceeding. If at the proceeding
`pursuant to article five hundred thirty of the criminal procedure law
`the court imposes bail on the new alleged criminal offense or
`commits the releasee to the custody of the sheriff pursuant to article
`five hundred thirty of the criminal procedure law and the releasee
`secures release by paying bail or under non-monetary conditions or
`by operation of law, then the releasee shall not be detained further
`based solely on the warrant issued by the department. If the
`department issues a warrant for a non-technical violation for alleged
`criminal conduct that has already been the subject of a court's order
`pursuant to article five hundred thirty of the criminal procedure law,
`then within twenty-four hours of execution of the warrant the
`releasee shall be provided a recognizance hearing pursuant to this
`subparagraph, provided, however, that if no court as defined in
`subparagraph (iv) of this paragraph is available to conduct any
`business of any type within twenty-four hours of the execution of
`the warrant, then the recognizance hearing shall commence on the
`next day such court is available to conduct any business of any type.
`
`
`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);
`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.
`7 Senate Sponsor Memo (S1144A), https://www.nysenate.gov/legislation/bills/2021/s1144.
`
`
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`4 of 168 of 34
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`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 7
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`N.Y. Exec. Law § 259-i(3)(a)(viii) (emphasis added).8
`
`14.
`
`In short, Executive Law § 259-i(3)(a)(viii) provides that when there is a parole
`
`violation charge that alleges new felony or misdemeanor conduct, and a court sets bail at a
`
`“proceeding pursuant to article five hundred thirty of the criminal procedure law,” and a releasee
`
`“secures release by paying bail or under non-monetary conditions or by operation of law, then the
`
`releasee shall not be detained further based solely on the warrant issued by the department.” More
`
`simply, when a person pays bail on a criminal matter that charges the same conduct alleged in the
`
`parole violation, that person must be released.
`
`15.
`
`Though the recognizance hearing “may” be held at the same time as the related
`
`CPL 530 hearing, they are nonetheless separate proceedings, with different ultimate questions, and
`
`require consideration of different factors. While the facts relevant to the legal questions at each
`
`hearing will almost always overlap, and it is in the interest of judicial economy to hold them
`
`simultaneously, they are separate inquiries which occur under entirely different statutory schemes
`
`(Criminal Procedure and Executive Laws).
`
`16.
`
`Thus, when Executive Law § 259-i(3)(a)(viii) specifically discusses “the
`
`proceeding pursuant to article 530” it means exactly what it says—any proceeding under the
`
`criminal procedure law in which a securing order may be imposed. The statement is operative
`
`
`8 DOCCS has previously argued that a person is not held on a warrant after a recognizance hearing and this Court has
`dismissed that argument. See People ex rel. Alfred v. Annucci, Index No. 800827 (Sup. Ct. Bronx Cnty. May 2, 2023)
`(available upon request). Such a claim has no basis in the law. A warrant is one of two legal mechanisms which
`commences a parole violation matter, and the securing order exists in connection with the warrant. N.Y. Exec. Law
`259-i(3)(a)(i). The term “securing order” does not appear anywhere in the Executive Law. It is a term invented by the
`Office of Court Administration, likely borrowed from the Criminal Procedure Law, as a label for the document sent
`from the Criminal Courts to the NYC Department of Corrections to communicate whether a person was ordered
`released or detained “on the warrant.” This section of the Executive Law clearly contemplates that someone would
`be detained “on the warrant” after a recognizance hearing when it indicates that after certain post-recognizance hearing
`events a “releasee shall not be detained further based solely on the warrant issued by the department.”
`
`
`
`5 of 169 of 34
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`FILED: BRONX COUNTY CLERK 08/07/2023 10:22 AMFILED: BRONX COUNTY CLERK 08/14/2023 12:11 PM
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`NYSCEF DOC. NO. 1NYSCEF DOC. NO. 7
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`anytime a court imposes bail on a criminal matter which constitutes the basis of the parole violation
`
`and a person gains release through one of the specified mechanisms.
`
`17.
`
`The plain language of the statute makes clear that upon gaining release on a
`
`criminal matter, the “releasee shall not be detained further solely on the warrant issued by the
`
`department.” “Shall” means “must,” in sharp contrast to “may” which is used in other portions of
`
`the section. Thus, no person may be detained on a DOCCS warrant related to criminal conduct for
`
`which they have been detained and released. This comports with the decarceral intentions of the
`
`Legislature, which sought to “reduce the number of people held in jail and prison in New York”
`
`though the passage of Less is More.”9
`
`18.
`
`This Court has agreed that Executive Law 259-i(3)(a)(viii) mandates release when
`
`there is a nexus between the conduct charged in the criminal matter and parole revocation matter
`
`and a person obtains release on their criminal matter. The facts here are similar to those in People
`
`ex rel. Freeman v. Annucci, Index No. 803829-22 (Sup. Ct. Bronx Cnty. Apr. 13, 2022) (Lewis,
`
`J.) and People ex rel. Correa v. Annucci, Index No. 805346-22 (Sup. Ct. Bronx Cnty. Apr. 13,
`
`2022) (Lewis, J.). In both cases, as here, bail was imposed on the criminal matter, and the
`
`petitioners subsequently posted it or obtained release by operation of law. This Court granted both
`
`writs from the bench, observing that the petitioners had satisfied all the requirements of Executive
`
`Law § 259-i(3)(a)(viii) and could not be detained exclusively on the parole warrant. Logically, it
`
`stands to reason that if the petitioners in Freeman and Correa were entitled to release, the petitioner
`
`here is entitled to release. Since those decisions, this Court has released dozens of similarly situated
`
`petitioners and should continue to follow that established precedent. See Ex. E, Release Orders for
`
`Petitions Alleging Violations of Executive Law 259-i(3)(a)(viii) (This document contains release
`
`
`9 Senate Sponsor Memo (S1144A), https://www.nysenate.gov/legislation/bills/2021/s1144.
`
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`orders for 85 petitioners who were released on a petition alleging only a violation under Executive
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`Law 259-i(3)(a)(viii) since the start of 2023. It does not include many other petitioners released on
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`the same ground, whose petitions also included other grounds for relief.)
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`19.
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`Prior to the implementation of the Less is More Act, once a person was remanded
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`on a parole matter, they could never obtain release for a corresponding criminal matter, even if
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`they could pay bail or the criminal judge ordered them released on that matter. The Legislature, in
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`the midst of the ongoing crisis of death and violence at Rikers Island, sought to create more
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`avenues for people on parole to be released prior to the outcome of their parole revocation
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`proceedings.10 It is also in this context that Governor Hochul signed the Act into law stating, “what
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`today is about is protecting human life . . . It’s about protecting human rights.”11 It is in light of
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`this clear, decarceral and humanitarian legislative intent that the Court must interpret the statute.
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`See N.Y. Stat. Law § 92 (McKinney) (“The primary consideration of the courts in the construction
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`of statutes is to ascertain and give effect to the intention of the Legislature.”)
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`20.
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`It is black letter law that “[t]he courts in construing a statute should consider the
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`mischief sought to be remedied by the new legislation, and they should construe the act in question
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`so as to suppress the evil and advance the remedy.” N.Y. Stat. Law § 95 (McKinney). The “evil”
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`was the mass incarceration of people on parole, and the “remedy” was erring in favor of pre-
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`revocation release. The statute wisely addresses how DOCCS should proceed when the order of
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`remand on the parole matter comes into conflict with the securing order set in the criminal matter.
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`Section 259-i(3)(a)(viii) makes it clear where a person has been incarcerated on a criminal matter
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`with corresponding conduct, and then obtains their liberty, the liberty decision in the criminal
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`10 Senate Sponsor Memo (S1144A), https://www.nysenate.gov/legislation/bills/2021/s1144.
`11 Tiffany Cusaac Smith, Hochul Signs Less is More Act While Evoking Rikers Island Jail Crisis, Attica Uprising,
`Lohud.com (Sept. 17, 2021), https://www.lohud.com/story/news/2021/09/17/hochul-signs-less-more-act-amid-
`crisis-uprising-rikers-island-jail/8377598002/.
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`proceeding governs and they “shall not be detained further based solely on the warrant”; a situation
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`in which a person is detained “solely on the warrant” is in contrast to a situation in which a person
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`is detained both on the warrant and on the criminal matter.
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`21.
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`Notably, unlike the Criminal Procedure Law, the Executive Law does not provide
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`for a mechanism to modify the order of remand on the parole warrant after the initial recognizance
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`hearing. Compare CPL §§ 530.60 and 510.20 with N.Y. Exec. Law 259-i(3). Rather than create
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`two processes and drain resources, the Legislature reasonably sought to automate the release
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`process on the parole matter in the specific circumstance where a criminal court has already
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`determined that release is appropriate.
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`22.
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`Respondent has previously conflated the order of detention with the warrant itself
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`in an effort to render Executive Law 259-i(3)(a)(viii) completely meaningless. This Court has
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`previously rejected that erroneous reading. See People ex rel. Alfred v. Annucci, Index No. 800827
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`(Sup. Ct. Bronx Cnty. May 2, 2023) (available upon request); Ex. E, Release Orders. Longstanding
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`cannons of statutory interpretation require courts to give meaning and effect to all parts of enacted
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`laws. See N.Y. Stat. Law § 231 (McKinney) (“In the construction of a statute, meaning and effect
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`should be given to all its language, if possible, and words are not to be rejected as superfluous
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`when it is practicable to give to each a distinct and separate meaning.”); see also Leader v.
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`Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 104 (2001) (“We have recognized that meaning and
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`effect should be given to every word of a statute.”).
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`23.
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`In a parole revocation matter, DOCCS may commence a proceeding by notice of
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`violation or by warrant. Commencement by warrant permits a court to issue a remand order to hold
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`the person on the warrant. Throughout the Executive Law, the term “warrant” is used to refer to
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`the parole matter itself. See N.Y. Exec Law §§ 259-i(3)(a)(i),(v) (describing a “warrant” as a
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`substantive legal instrument associated with specific violation charges that must be properly issued
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`and executed to initiate revocation proceedings, not merely as a detention order). The warrant is
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`analogus to a complaint or indictment in criminal matter, which has an associated order of release,
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`non-monetary conditions, bail, or remand—but the person being prosecuted is nonetheless being
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`detained on the criminal case. In both a parole and criminal matter, a court issues the appropriate
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`order under the law in order to secure the appearance of the person at future dates in the proceeding.
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`However, the order itself is not the proceeding; it is simply a mechanism to secure the person’s
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`appearance. Following a parole recognizance hearing, a person may be detained solely on their
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`parole warrant in the same way that, following a bail hearing, a person may be detained solely on
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`their criminal matter. The securing order effectuates the release or detention under the warrant; it
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`does not replate the warrant. Such a reading would be akin to saying an order of bail replaces the
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`criminal matter. Notably the term “securing order” appears no where in the Executive Law, while
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`the term “warrant” does.
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`24.
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`To conclude that the order in a parole proceeding replaces the proceeding itself
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`would render 259-i(3)(a)(viii) completely meaningless. The plain language of the statute dictates
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`that a person can be held “on the warrant” and imposes a prohibition on detention “on the warrant”
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`after being incarcerated at a recognizance hearing and subsequently obtaining release on a related
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`matter. N.Y. Exec. Law § 259-i(3)(a)(viii) (“[T]he releasee shall not be detained further based
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`solely on the warrant issued by the department.”).
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`25.
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`Additionally, this reading is consistent with other portions of the legislation.
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`Section 259-i(3)(a)(viii) is not the only section where Less is More requires that an aspect of the
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`parole revocation proceeding be deferred to the criminal courts. For example, pursuant to section
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`259-i(3)(f)(viii), "Conduct that formed the basis of an arrest shall not form a basis of a sustained
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`parole violation if a court has adjudicated the matter with an acquittal, adjournment in
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`contemplation of dismissal, or violation." In other words, Less is More divested DOCCS of
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`jurisdiction to adjudicate parole violation charges for those people who were charged with
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`violations related to criminal charges that have been resolved by the criminal court in a specific
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`way. Less is More prevents DOCCS from relitigating alleged criminal behavior adjudicated in a
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`by a criminal court, and it similarly prevents DOCCS from relitigating whether the releasee is
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`entitled to pre-adjudication freedom when a criminal court has already ruled on the issue.
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`26.
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`Release under these facts is also in accordance with the interpretation of Executive
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`Law § 259-i(3)(a)(viii) in other counties. People ex rel. Jimmy Smith v. Russo, Index 2022-27108
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`(Sup. Ct. Rensselaer Cnty. Mar. 8, 2022) (Jordan, J.) (attached as Exhibit F) is instructive. There,
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`Mr. Smith had been incarcerated on a parole warrant prior to March 1, 2022, and was released
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`pursuant to CPL § 180.80 on March 1, 2022, the date the law went into effect. When DOCCS
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`refused to release him under Executive Law § 259-i(3)(a)(viii), he brought a writ to secure his
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`release. The court correctly reasoned that “the clear mandates of the statute prohibit the detention
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`of releasees based solely on a parole warrant in the limited situation where the parole volition
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`charged involves new criminal conduct and the releasee was released on those criminal charges.”
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`Id. The Smith court found that any other interpretation resulting in incarceration on the parole
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`matter after release on the criminal matter would “strain sensibility.” Id.
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`27.
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`Here, the requirements of section (3)(a)(viii) have been satisfied, and the petitioner
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`is being held exclusively on the parole warrant. For all of the foregoing reasons, Mr. Sanchez’s
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`continued detention is unlawful under Executive Law § 259-i(3)(a)(viii). As such, the Petition
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`should be sustained and detention under the parole warrant should be vacated.
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`Respondents’ Return Must be Filed at the Time and Place Specified in the Writ in
`Accordance with CPLR Article 70
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`28.
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`The writ of habeas corpus has historically been viewed as so precious that
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`Alexander Hamilton once called it the “bulwark” of individual liberty.” Hamilton, A., The
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`Federalist No. 84 (Clinton Rossiter ed. 1961). Habeas corpus is enshrined in Article I of the United
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`States Constitution. U.S. Const. art. I., § 9, cl. 2 (“The privilege of the Writ of Habeas Corpus shall
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`not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require
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`it.”). New York’s Constitution mimics the federal provisions. N.Y. Const. art. 1, § 4; see also
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`People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 501 (1969) (recognizing “the constitutional access
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`to the writ of habeas corpus”). The CPLR has deemed habeas corpus a “special proceeding” that
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`mirrors the common law writs used to “inquire into detention” CPLR § 7001.
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`29.
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`CPLR § 7004 governs where a writ may be made “returnable,” meaning where it
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`may be heard. Subsection (d) states that “The writ may be made returnable forthwith or on any
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`day or time certain as they case requires.” CPLR § 7008 governs “returns,” which is what the
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`habeas statute calls a respondent’s papers. It states that “[t]he return shall consist of an affidavit to
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`be served in the same manner as an answer to a special proceeding and filed at the t