EXECUTIVE DEPARTMENT OF THE STATE OF NEW YORK

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In the Matter of the Parole Revocation of

Joseph Forino

NYSID# 06312822H

Warrant# 438872

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Respectfully Submitted

Kent V. Moston
Attorney in Chief
Legal Aid Society of Nassau County
By,

Oren Varnai, Esq.

Of Counsel
February 2, 2006
 PRELIMINARY STATEMENT

This is an administrative appeal, pursuant to executive law 259-i(4) and NYCRR

Section 8006 from the decision of ALJ Alex Rivkin (“ALJ”) revoking appellant Joseph

Forino’s (“Forino”) parole and imposing a time assessment of ten (10) months.

STATEMENT OF FACTS

Appellant was on parole for the crime of Burglary in the 2nd degree, for which he

was sentenced on May 10th 1999 to a term of 4-8 years.

On September 16, 2006, the Division of Parole (“Division”) properly served

Appellant Forino with a Violation of Release Report (“Violation”) prepared by Parole

Officer Angela Narcisse (“Exhibit A”).

The Division scheduled an initial final hearing for October 6, 2005, and that

hearing was rescheduled for a contested hearing to be held on October 27, 2005. The

Division adjourned the contested hearing once more to November 17, 2005. At the Final

Revocation Hearing the Division withdrew with prejudice charges 1 and 2 of the

Violation (Record P.9-10). The only remaining charge, a rule #6 violation of failure to

report a police contact, is the issue on this appeal.

On November 17, 2005 Appellant mailed a notice of appeal, and a transcript of

the proceeding was received on February 1, 2006.

The transcript of the proceeding is attached as Exhibit B.

 ARGUMENT

POINT I

APPELLANT DID IN FACT NOTIFY THE DIVISION OF HIS ARREST

Appellant’s wife, Michelle Forino, testified that she had notified the Division of

her husband’s arrest on his behalf.

Mrs. Forino testified that she called the Division on the 8th, 9th, and 11th of

September (Record p. 30). Phone records (“Exhibit C”) from Mrs. Forino’s home phone

number were entered into evidence without objection (Record p. 33). There were actually

two phone calls on September 8th: An initial one at 4:32 pm, and a second one at 4:33 pm.

A third phone call was made on September 9th, 2005 at 9:44 am. Mrs. Forino testified that

she also called on September 11th, 2005, but she did not recall what phone she was using

to make that call.

On the date of the arrest, Appellant asked Detective Lorenzo, the arresting officer,

to contact the Division on his behalf (Record p. 24). Parole Officer Narcisse

acknowledged that she received a phone call from Detective Lorenzo on September 1,

2005 prior to Forino’s arrest that day (Record p. 14).

POINT II

THE APPELLANT COULD NOT HAVE NOTIFIED THE DIVISION OF HIS

ARREST IMMEDIATELY

Appellant could not have notified the Division prior to September 6, 2006 of his

arrest because he was on 72-hour lockdown, and the Division was closed for the Labor

Day holiday.
 Appellant was arrested on September 1, 2005 (Record p. 11). Parole Officer

Narcisse acknowledged that she was on vacation from August until September 6, 2005,

and on that date she received an arrest report indicating that Forino had been arrested

(Record p.15). The Appellant was on 72-hour lockdown at the Nassau County

Correctional Center (Record p.17) and the Division’s offices were closed on September 5,

2005 due to the Labor Day Holiday (Record p.17). Parole Officer Narcisse acknowledged

that September 6, 2006 was the first date Appellant could have telephoned the Division to

alert them of his arrest (Record p.17). The 72-hour lockdown prevented Appellant from

contacting anyone, let alone the Division, which was also closed on September 5, 2005.

POINT III

THE DIVISION DID NOT PROVE ITS CASE WITH A PREPONDERANCE OF

THE EVIDENCE

During the entire direct and cross examination of Parole Officer Narcisse there

were continuously statements to the absence of messages from the Appellant or his wife

regarding Appellant’s arrest. When asked as to the possibility of messages being lost

Parole Officer Narcisse testified “I can’t predict. If I didn’t receive a message, that means

I didn’t receive a message,” leaving the possibility that even though a message was left, it

was not relayed to her (Record p. 20). Testimony was given as to procedures used by the

Division to relay messages, but even Parole Officer Narcisse acknowledged that when

messages are taken down she “…usually get[s] it immediately…” (emphasis added)

(Record p. 21).
 The Parole Officer and the Parole Revocation Specialist Arguelles believe that if

Ms. Narcisse did not receive a message it must never have existed. This mindset is belied

by the fact that phone records were introduced; testimony was received from Appellant

and his wife. No explanation was given as to how Detective Lorenzo, or why, contacted

the Division. As adduced from Appellant, Detective Lorenzo called the Division at his

request to notify the Division that he was about to be arrested. The Appellant went above

and beyond to notify the Division both through Detective Lorenzo, and through his wife.

The Division was required to prove its case with a preponderance of the evidence.

The Division could not do so with the presentation of the absence of a message from

Appellant, which in essence is the futile attempt of proving a negative. Even if the burden

of proof was the Appellant, it is clear that sufficient evidence was presented for the ALJ

to rule in his favor.

POINT IV

APPELLANT IS NOT A PERSISTENT VIOLATOR, AND SHOULD HAVE BEEN

IMPOSED A TIME ASSESSMENT OF TIME SERVED + 6 MONTHS

Even if it is decided that Appellant did not notify the Division of his arrest, the

current alleged violation would have been appellant’s 2nd sustained violation, and as such,

with a conviction for Burglary in the 2nd Degree, for which he was paroled, the Appellant

should have received a time assessment of time served + 6 months as a category 3

violator.

EXHIBIT A
EXHIBIT B
EXHIBIT C