At a Special term, Part II of the Supreme Court of the

State of New York, held in and for the County of

Nassau, on the of July, 2006

PRESENT:

HON.
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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. JOSEPH FORINO, DOB 12/09/1970

Petitioner, Petition for a Writ

of Habeas Corpus
- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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THE PEOPLE OF THE STATE OF NEW YORK, THE SHERIFF OF NASSAU

COUNTY, THE WARDEN OF THE NASSAU COUNTY CORRECTIONAL CENTER, OR ANY

OTHER PERSON HAVING CUSTODY OF THE PERSON OF JOSEPH FORINO.

WE COMMAND YOU, that you have the body of JOSEPH FORINO by you imprisoned

and detained, together with the time and cause of such imprisonment and detention, by whatever

name JOSEPH FORINO shall be called or charged before the Supreme Court of the state of New

York, Special Term, Part II, Mineola, New York on the __ Day of JULY, 2006 at 9:30 o'clock in

the forenoon or as soon thereafter as the matter can be heard to do and receive what then and there

shall be considered concerning the said JOSEPH FORINO and have you then and there this writ.

Sufficient reason appearing therefore, personal service of this writ upon the Sheriff of

Nassau County at the Office of the Sheriff, 240 Old Country Road, Mineola, New York, and upon

the Office of the District Attorney of Nassau County, 99 Main Street, Hempstead, New York at or
before o'clock in the noon on the ___ day of JULY 2006 shall be deemed due and sufficient

service.

WITNESS, HON. ______________________ of the Justices of the Supreme Court of the

State of New York, the ___ day of JULY 2006. The within writ is hereby allowed this _____ day

of JULY 2006.

_______________________________
JUSTICE OF THE SUPREME COURT
OF THE STATE OF NEW YORK
STATE OF NEW YORK
COUNTY OF NASSAU: SUPREME COURT
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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. JOSEPH FORINO,
VERIFIED PETITION
Relator,
- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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STATE OF NEW YORK)
) ss.:
COUNTY OF NASSAU )

DANIEL SCHNEIDER, being duly sworn deposes and says:

1. I am an attorney, admitted to practice before the Courts of the State of New York and am

associated with Kent V. Moston, Attorney in Chief, Nassau County Legal Aid Society,

counsel assigned to represent the Petitioner herein and is fully familiar with the facts of

this case.

FACTS

2. Petitioner, JOSEPH FORINO, is presently detained at the Nassau County Correctional

Facility under the custody of the Sheriff, Edward Reilly. He was charged under docket

number 2005 NA 01983 with violating the Penal Law §110-140.25(2), Attempted Burglary

in the Second Degree (which has since been reduced to a B Misdemeanor).

3. On September 1, 2005, Petitioner was arrested by Detective Lorenzo. At Petitioner’s

request Detective Lorenzo called Petitioner’s Parole Officer (“P.O.”). Petitioner’s P.O.

acknowledged talking to Detective Lorenzo about the Petitioner, on September 1, 2005.

4. Because Petitioner’s P.O. was on vacation for the Labor Day holiday weekend until

September 6, 2005, Petitioner could not further contact her after the initial contact by the

detective until his P.O.’s return.

5. Shortly thereafter, on September 8, 2005, as has been demonstrated by phone records,

Petitioner’s wife called the Division of Parole (“Division”) on multiple occasions and left a

message with a receptionist that Petitioner had been arrested.

6. As a result of this, Petitioner who is on parole for the crime of Burglary in the 2 nd degree

for which he was convicted of in 1999, the Division properly served Petitioner with a

Violation of Release Report (“Violation”) prepared by P.O. Angela Narcisse on September

16, 2006. See Attached Exhibit A.

7. The Division’s scheduled initial final hearing for October 6, 2005, was rescheduled for a

contested hearing on October 27, 2005 but was again adjourned by the Division until

November 17, 2005. At the Final Revocation Hearing the Division withdrew with

prejudice charges 1 and 2 of the Violation, See Attached Exhibit B, Transcript of Final

Hearing at pp. 9:23-10:2, the petitioner was found guilty of the only remaining charge, a

rule #6 violation of failure to report a police contact. He received a time assessment of 10

months, which he completed on July 11, 2006.

8. The petitioner appealed the ruling of the Final Revocation Hearing, submitting a brief

challenging the only remaining charge. See Attached Exhibit C. Federal Express records

reflect that the Division received the brief on February 6, 2006. See Attached Exhibit D.

9. Petitioner is being illegally detained because he has completed his time assessment.

Petitioner has served his entire time assessment levied at his final hearing without knowing
 the outcome of his appeal. The board has forced him to serve the entire time they deemed

necessary and yet, he is still being held on his parole violation.

10. The appeal was not only ignored for the requisite time given to decide an appeal by the

Division of Parole Rules and Regulations, but for the entire term of his time assessment

which resulted from the hearing.

11. The Division of Parole Rules and Regulations, 9 NYCRR § 8000, et. seq., require that an

appeal of a parole decision be decided upon within four months. See Attached 9 NYCRR

§ 8006.4(c) (“Should the appeals unit fail to issue its findings and recommendation within

four months of the date that the perfected appeal was received, the appellant may deem this

administrative remedy to have been exhausted, and thereupon seek judicial review of the

underlying determination from which the appeal was taken. In that circumstance, the

division will not raise the doctrine of exhaustion of administrative remedy as a defense to

such litigation.”). June 7, 2006 was the outside date of the four month time limit. Until

now, the Parole Board has not decided this appeal.

12. At this point, regardless of the outcome of the appeal, there is no reason to hold him since

he has served his entire time assessment and the only other case pending is a B

misdemeanor. Any deferral to the parole board, as defined by 9 NYCRR § 8005.20(c)(6),

which occurs when a parolee is charged with a new felony, would result in an illegal

detention because Petitioner’s new charge was reduced to a B misdemeanor and he has

been released on his own recognizance on that charge.

13. On February 14, 2006, the Petitioner’s Attempted Burglary charge was reduced to a B

misdemeanor by Judge Berkowitz (a decision being appealed by The People) and on June
 19, 2006, Judge Berkowitz released the Petitioner on his own recognizance on that charge.

The petitioner remains incarcerated only because of his parole violation. The time

assessment he received as a result expired on July 11, 2006 and he has not been released.

I. The Defendant should be released because his appeal of the Administrative Law Judge’s
decision at his final Parole Revocation hearing was not decided within the requisite four
months, as prescribed by Division of Parole Rules and Regulations

14. Petitioner was found to have violated rule #6 of his parole in that he failed to report his

contact with the police to the division of parole. All other charges were dismissed with

prejudice.

15. Petitioner submitted a timely appeal of this decision, received by February 6, 2006,

showing that the he had actually contacted, on numerous occasions, the division of parole

through his wife, as evidenced by the Telephone records admitted into evidence at the

hearing, see attached Exhibit E and the testimony of his wife, see Exhibit B at 29:1-36:25.

16. The Division of Parole Rules and Regulations state, “Should the appeals unit fail to issue

its findings and recommendation within four months of the date that the perfected appeal

was received, the appellant may deem this administrative remedy to have been exhausted,

and thereupon seek judicial review of the underlying determination from which the appeal

was taken.” 9 NYCRR § 8006.4(c).

17. Because more than four months have passed and the petitioner’s appeal has not been

decided, and because the end date of the time assessment he received at his final parole

revocation hearing, July 11, 2006, has passed, he is being detained illegally. There is no

good cause to continue to hold him and he should be released.

II. The Petitioner should be released because the Division of Parole did not prove, with a
preponderance of the evidence in an important respect that the Petitioner is guilty of
violating sole parole violation allegation he was charged with and despite that, he has
completed the time assessment levied as a result of that charge.

18. As his appellate brief, and the attached evidence make clear, the Petitioner did contact his

P.O. after he came in contact with the police, the only violation that he was found guilty of.

His charge as stated reads, “Joseph Forino violated Rule #6 of the conditions governing his

release to parole supervision in that he failed to immediately notify his Parole Officer A.

Narcisse of his arrest…” Exhibit A at p. 2.

19. Rule #6 of Conditions of Release reads, “I will notify my Parole Officer immediately any

time I am in contact with or arrested by any law enforcement agency. I understand that I

have a continuing duty to notify my Parole Officer of such contact or arrest.” Id. at p. 5.

20. This allegation is untrue. First, on September 1, 2005, the day of his arrest, Petitioner had

his arresting officer, Detective Lorenzo to notify the Division that he was to be arrested.

See Exhibit B at p. 23:24-24:11. Petitioner’s P.O. acknowledged talking to Detective

Lorenzo about the petitioner on that day. See Id. at p.14:17-22.

21. Second, Petitioner’s appellate brief, see Exhibit C, the extensive phone records, see Exhibit

E, and the testimony of Petitioner’s wife demonstrate, the Petitioner did in fact repeatedly

call petitioner’s P.O. and left a message with a receptionist after he was arrested. See

Exhibit B at p. 30:17-24. The ALJ, even acknowledges the Petitioner’s wife did attempt to

call the division, in saying in his decision, “Even though releasee’s wife did telephone

division, no notification of releasee’s arrest was made.” Exhibit F, Parole Revocation

Decision Notice at p. 3 (Emphasis added).

22. The finding that Petitioner did not make contact was based solely on the fact that the P.O.

testified that she did not receive messages from either Petitioner or his wife. Not receiving

messages was tantamount to no messages being left at all.

23. That the P.O. did not receive the calls should not matter. The fact that the calls were

attempted and messages were left should suffice. See Attached Exhibit G, People ex rel.

Mario Bayham v. Meloni, 700 N.Y.S.2d 649 (County Court, Monroe County 1999). In

Meloni, the court found that the releasee’s failure to reach his P.O., despite several attempts

that were thwarted because he could not make a necessary long distance call, could not be

an independent ground for revocation. Meloni, 700 N.Y.S.2d at 650.

24. Here, similarly, the Petitioner has demonstrated several attempts to contact his P.O.. He

was also thwarted, here by a 72 hour lockdown that resulted from Labor day weekend.

The major difference is that Petitioner’s wife did get through to the division and leave a

message. For these reasons, Petitioner’s proofs of attempts to reach his P.O. should be

sufficient. He should not be punished simply because the P.O. did not receive the message.

It should not provide an independent ground for revocation.

25. Petitioner went above and beyond to notify his P.O. of his arrest. The P.O. had actual

notice in that Petitioner had his arresting officer call the day of his arrest and she had

constructive notice in that Petitioner’s wife called multiple times later in the week and left

messages. The 72 hour lockdown due to the Labor Day holiday weekend justifies the short

delay. Since the merits of this appeal were not decided upon, and the Division was able to

enforce its punishment anyway, which petitioner has completed, any detainment from July

11, 2006 has been illegal.

26. As, Petitioner has been released on his own recognizance on his pending charge, which

was reduced to a B misdemeanor by Judge Berkowitz and the only thing holding him is

parole, Petitioner has been denied his right to his liberty in that he has completed his parole

term. This is despite the fact that that he should not have been held on parole in the first

place. For that reason, this writ should be granted and the Petitioner must be released.
 WHEREFORE, it is respectfully requested that a writ of habeas corpus be issued directing

Edward Reilly, or whoever has custody of JOSEPH FORINO, to bring and produce the Petitioner

before this Court for a hearing and determination concerning the detention of said relator and to

show cause why he shall not be released.

_________________________
DANIEL SCHNEIDER, ESQ.

Dated: July 5, 2006

Hempstead, NY
 At a Special term, Part II of the Supreme
Court of the State of New York, held in and
for the County of Nassau, on the of
July, 2006

P R E S E N T:

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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. JOSEPH FORINO,
Relator,

- against -
JUDGMENT

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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On reading and filing the petition of JOSEPH FORINO, and on the Writ of Habeas

Corpus allowed on said petition and on JULY , 2006, JOSEPH FORINO, having appeared

by his attorney, KENT V. MOSTON, by in support of said petition and writ and the

District Attorney by and deliberations having been had thereon.

It is on the motion of KENT V. MOSTON, ESQ., an attorney assigned for the Relator,

ORDERED, ADJUDGED AND DECREED, that the Relator, JOSEPH FORINO, be released

from the Nassau County Correctional Center.

ENTER

JUDGE OF SUPREME COURT

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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. JOSEPH FORINO,

Petitioner,
VERIFICATION

- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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STATE OF NEW YORK)

) ss.:
COUNTY OF NASSAU )

DANIEL SCHNEIDER, being duly sworn deposes and says:

1. Affiant is an attorney and has read the foregoing petition and knows the contents thereof

to be true, except as to matters therein stated to be on information and belief, and as to those

matters, deponent verily believes them to be true.

2. This verification is made by the attorney and not by the relator himself because all of

the materials allegations contained in the petition are within his personal knowledge.

_____________________
DANIEL SCHNEIDER, ESQ.

Sworn to before me this

day of JULY, 2006