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 August, 2006

PRESENT:

HON.
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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. OMJASISA FELDER, DOB 01/13/1971

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 OMJASISA FELDER.

WE COMMAND YOU, that you have the body of OMJASISA FELDER by you

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

whatever name OMJASISA FELDER 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 AUGUST, 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 OMJASISA FELDER 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 New York State Attorney General’s Office, 200 Old Country Road, Suite 460,

Mineola, New York at or before o'clock in the noon on the ___ day of AUGUST 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 AUGUST 2006. The within writ is hereby allowed this _____

day of AUGUST 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. OMJASISA FELDER,
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, OMJASISA FELDER (Petitioner), is presently detained at the Nassau County

Correctional Facility under the custody of the Sheriff, Edward Reilly. He was arrested on

June 7, 2006 and was charged under docket number 2006 NA 13972 with violating Penal

Law §120.00, Assault in the Third Degree, an A misdemeanor. See Attached Exhibit A,

p.3, Violation of Release Report (“Violation”) prepared by P.O. Julian on June 21, 2006.

3. On June 11, 1997, Petitioner was sentenced upon pleas of guilty to two counts of Criminal

Sale of a Controlled Substance in the Fifth Degree (CPCS-5) (Penal Law § 220.31), and

one count of Attempted Robbery (§110-160.15). He received a 3.5-7 year indeterminate

 sentence and a 5 year determinate sentence, without post-release supervision, respectively,

which were to run concurrently with one another. Petitioner was conditionally released on

May 21, 2004 and was living in the community without incident for over two years.

4. Petitioner was arrested on June 7, 2006 for charge that is still pending in district court. But

for the parole hold, he could be released on his own recognizance on that charge. He has

continued to have bail set so as to get credit for his time while his violation of parole is

pending.1

5. As a result of this arrest, which occurred in the middle of the night, Petitioner was

warranted on a parole violation. See Exhibit A. He received two charges, one which was

the allegations in the criminal complaint and the other was a curfew violation. This

warrant should not have been filed because Mr. Felder should no longer be on parole.

6. Petitioner is being illegally detained because under Executive Law 259-j(3-a), see Attached

Exhibit B, the division of parole “must grant termination of sentence after two years of

unrevoked parole to a person serving an indeterminate sentence for any other felony

offense [other than a Class A] defined in article two hundred twenty or two hundred

twenty-one of the penal law.” Id. (Emphasis added).2

7. Petitioner was convicted of an applicable charge and went more than two years without

having his parole revoked. Thus his sentence should have been terminated, he should not

have even been on parole and his hold based on a violation of parole is illegal. For this

reason and the fact that petitioner has no additional holds on him, he should be released.
1
In his open district court case, petitioner’s attorney, Rachel Siskind of Legal Aid Society will get him ROR’d on
August 9, 2006, pursuant to CPL § 30.30(2)(b) because prosecution has not been ready for trial after 30 days of
prosecution’s time. The 30 day time ran some time ago, but a petition has not been made because of the parole hold.
2
It should be noted that in the event that this court deems that this matter is bore properly brought as a mandamus to
compel pursuant to CPLR Art. 78, the petitioner would not oppose its conversion.
ARGUMENT

I. The Defendant should be released because parole term should have been terminated
automatically, pursuant to Executive Law 259-j(3-a), after having served two years on parole
with being violated.

A. Executive Law 259-j(3-a) applies to the petitioner because he served almost seven
years in prison on sentences which were running concurrently, thus he had completed
the five year determinate sentence for robbery and the he was finishing his parole for
the controlled substance charge only.

8. Petitioner, when sentenced was given an indeterminate sentence and a determinate

sentence which have been running concurrent with one another. He did not receive post

release supervision on the determinant sentence. See Exhibit A, p.4. Therefore, after five

years in prison, on, or about June 11, 2002, he completed his sentence for the attempted

robbery. He was released from prison, almost two years later in May of 2004 or almost

seven years after he was sentenced.

9. Nowhere in the Executive Law 259-j does is it mentioned that an accompanying conviction

along with an applicable drug crime would make the termination clause inapplicable. It

merely states that one must have completed two years of uninterrupted parole on a charge

within PL § 220 or 221. If that is fulfilled, the Division of Parole must terminate that

person’s sentence.

10. Petitioner did just that. Though he did have an accompanying charge, he did complete

more than two years of parole supervision for convictions of CPCS-5. For that reason

alone Executive Law 259-j(3-a) must apply.

11. Further, because he completed his attempted robbery sentence, that charge need not even

be considered when determining whether Executive Law 259-j(3-a) applies. The only

charges that he was serving a parole sentence on were the CPCS-5’s. These fall under
 Article 220 of the Penal Law, an applicable section of 259-j(3-a), the rules contained in this

section of the Executive Law must apply and his sentence should have been terminated

when he reached the two year mark of uninterrupted parole.

B. Because Petitioner went more than two years without being violated on parole,
Executive Law 259-j(3-a) mandates that his sentence must have been terminated and
therefore any hold based on that sentence is unlawful.

12. Petitioner was released from prison on May 21, 2004. See Exhibit A, p.4, Certificate if

Release to Parole Supervision. He was not arrested again until June 7, 2006. See Id. at p.

3. The new arrest occurred two years and two weeks after Petitioner was released.

13. Executive Law 259-j(3-a) mandates a sentence, pursuant to Penal Law Article 220, must

be terminated if the releasee is on unrevoked parole for a minimum period of two years.

14. In this case, Petitioner clearly was on parole for more than two years without having that

period interrupted by a revocation. He was convicted of two counts of Penal Law §

220.31, a section that definitely falls into the jurisdiction of the executive law and these are

the only counts that he is still doing time for.

15. Therefore, under the law, petitioner’s sentence must have been terminated on or about May

21, 2006, when he reached his two year anniversary of being released from prison. As a

result of this, he should no longer have been on parole and the fact that he is being held on

a violation of that parole amounts to an illegal detention, as he is being held on a parole

warrant for a parole term that does not exist. Therefore, petitioner must be released

immediately.
 WHEREFORE, it is respectfully requested that a writ of habeas corpus be issued directing

Edward Reilly, or whoever has custody of OMJASISA FELDER, 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: August 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
August, 2006

P R E S E N T:

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THE PEOPLE OF THE STATE OF NEW YORK
ex rel. OMJASISA FELDER,
Relator,

- against -
JUDGMENT

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
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On reading and filing the petition of OMJASISA FELDER, and on the Writ of Habeas

Corpus allowed on said petition and on AUGUST , 2006, OMJASISA FELDER, 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, OMJASISA FELDER, 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. OMJASISA FELDER,

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 AUGUST, 2006