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.
------------------------------------------------------------------X
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.
-----------------------------------------------------------------X

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
-----------------------------------------------------------------x
THE PEOPLE OF THE STATE OF NEW YORK
ex rel. JOSEPH FORINO,
VERIFIED PETITION
Relator,
- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
----------------------------------------------------------------x
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.

3. As a result of this, the 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 of Parole (“Division”) properly

served Petitioner with a Violation of Release Report (“Violation”) prepared by Parole

Officer Angela Narcisse on September 16, 2006. See Attached Exhibit A.

4. 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. 9-10, 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.

5. 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.

6. Petitioner is being illegally detained because the merits of his appeal of his parole violation

decision have not been decided upon and he has completed his time assessment. 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. 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.

7. 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 9 NYCRR §

8006.4(c). June 7, 2006 was the outside date of the four month time limit. Until now, the

parole board has not decided this appeal.

8. 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.

9. 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

10. 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.

11. 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 30-36.

12. 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).

13. 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.

II. The Petitioner should be released because the Division of Parole has not proved 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.

14. The Petitioner is only being held on a violation of Rule #6 of the Conditions of Release.

Rule #6 States, “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.” See Exhibit A at p. 5.

15. Petitioner’s Charge reads as follows, “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…” See Id. at p. 2.

16. As Petitioner’s appellate brief clearly proves, along with the extensive phone records and

the testimony of his wife, the Petitioner did in fact repeatedly call petitioner’s Parole

Officer after he was arrested. See Exhibit B at p. 30. The finding that he had not was

based solely on the fact that the parole officer testified that he did not receive messages

from either Petitioner or his wife, even though he acknowledged receiving a call from the

arresting officer on the day of the arrest. See Id. at p.14.

17. Since the issues on appeal before the parole board had merit, at bare minimum, the fact that
 the parole board did not decide his appeal detained the petitioner illegally. Since he has

been released on his own recognizance on his new charge, Petitioner has been denied his

right to his liberty in that the only thing holding him in prison was an appeal that was

simply being ignored. For that reason, this writ should be granted and the Petitioner

should be released.

III. Though Petitioner has not been advised whether it will happen, and despite the fact that
The People are appealing the reduction in charge, any attempt to defer his parole violation
decision to the Parole Board, would result in his illegal detention.

18. Deferral to the Parole Board of a decision made by an ALJ because, inter alia, the parolee

has a new felony pending. See 9 NYCRR § 8005.20(c)(6). Here, deferral to the board

would be inappropriate because Judge Berkowitz in Nassau County Court in Mineola, NY

reduced Petitioner’s new charge to a B misdemeanor.

19. A new misdemeanor without the existence of a felony makes an Administrative Law Judge’s

(ALJ) ruling on a violation of parole case binding. See Id. The ALJ here gave a time

assessment of 10 months which expired July 11, 2006. Because his only open charge is a

misdemeanor, the ALJ’s decision is binding and therefore, that is the date Petitioner should

have been released. The fact that he is still being held is unlawful.

20. That The People are appealing Judge Berkowitz’s decision should not matter. The fact remains

that at this time, the Petitioner’s only open charge is a B Misdemeanor and he has been

released on his own recognizance. In light of all of this, the Petitioner should have been

released from prison on the date that his time assessment expired, July 11, 2006.
 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:

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

- against -
JUDGMENT

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
---------------------------------------------------------------x

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

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

Petitioner,
VERIFICATION

- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
-----------------------------------------------------------------X

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