You are here: / / DEFENDANT CHALLENGED THE VALIDITY OF THE PAROLE WARRANT WHICH WAS THE BASIS...
, ,

DEFENDANT CHALLENGED THE VALIDITY OF THE PAROLE WARRANT WHICH WAS THE BASIS OF THE ENTRY INTO HIS HOME (THE PAYTON ISSUE); THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE VALIDITY OF THE PAROLE WARRANT (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing, determined the judge should not have found the police entry into defendant’s residence (the Payton issue) was justified by the parole warrant without a hearing to determine validity of the parole warrant:

” … A parole violation warrant by itself justifies the entry of the residence for the purposes of locating and arresting the defendant therein . . . provided that, as here, the officers ‘reasonably believe[d] the defendant to be present’ in the premises … . … Inasmuch as defendant challenged the factual basis for and the continued validity of the parole violation warrant at the time of his arrest, which he alleged was executed solely by police officers unaccompanied by parole officers, that was error.

Pursuant to 9 NYCRR 8004.2 (a), a parole violation warrant cannot be issued without “probable cause to believe that [the parolee] has violated one or more of the conditions of their release.” “Probable cause exists when evidence or information which appears reliable discloses facts or circumstances that would convince a person of ordinary intelligence, judgment and experience that it is more probable than not that the subject releasee has committed the acts in question” (9 NYCRR 8004.2 [b]). If a parole officer believes that there is probable cause that the parolee has violated a condition of release “in an important respect,” that parole officer is required to report that to the parole board “or a designated officer,” such as a senior parole officer (9 NYCRR 8004.2 [a]), at which time “a notice of violation may be approved” (9 NYCRR 8004.2 [c]) and a warrant for “retaking and temporary detention may [be] issue[d]” by, among others, a designated officer (9 NYCRR 8004.2 [d]). Notably, a parole violation warrant may be administratively canceled “[a]t any time” after it is issued (9 NYCRR 8004.11 [a]).

Here, inasmuch as defendant sufficiently raised the Payton issue in his omnibus motion, and the People’s opposition papers did not resolve the issue as a matter of law, the court should have afforded defendant the opportunity to put the People to their proof regarding the alleged probable cause for the warrant, i.e., absconding, and whether the warrant was still active at the time defendant was arrested … . People v McCracken, 2023 NY Slip Op 03614, Fourth Dept 6-30-23

Practice Point: Here the entry into defendant’s home was justified by a parole warrant. Because the defendant challenged the validity of the parole warrant, and the People did not demonstrate its validity in their papers, defendant was entitled to a judicial determination after a hearing.

 

You might also like
Criteria for “Apparent Authority” to Enter a Binding Contract, Including the “Apparent Authority” of a Member of a Limited Liability Corporation, Explained
PLAINTIFF WAS INJURED WHEN HE FELL THROUGH A FLOOR OPENING IN A HOUSE UNDER CONSTRUCTION, DEFENDANT HAD PLACED CARDBOARD OVER THE OPENING, THE MOTION TO SET ASIDE THE DEFENSE VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
RESPONDEAT SUPERIOR DOCTRINE MAY BE APPLIED BASED UPON A PRINCIPAL-AGENT RELATIONSHIP INVOLVING VOLUNTEERS, HERE PLAINTIFF WAS INJURED BY A LADDER WHEN VOLUNTEERS WERE PAINTING THE BUILDING OWNED BY THE DEFENDANT, POINTING TO GAPS IN THE OPPOSING PARTY’S PROOF WILL NOT SUPPORT SUMMARY JUDGMENT (FOURTH DEPT).
Where Proof Is Directed Exclusively to a Theory Not Charged in the Indictment, the Proof Is Insufficient to Support the Conviction—Such a Variance Need Not Be Preserved by Objection to Be Raised on Appeal/Conduct of Spectators (Mouthing Words When Victim Testified) Did Not Require that the Spectators Be Removed and Did Not Mandate the Declaration of a Mistrial
PLAINTIFF’S ALLEGATION OF A NEW INJURY IN A SUPPLEMENTAL BILL OF PARTICULARS SUBMITTED IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED BY THE MOTION COURT.
IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED.
DECISION ON APPEAL RESERVED AND MATTER REMITTED FOR A DETERMINATION WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS (FOURTH DEPT).
Summary Judgment for Out of Possession Landlord in Slip and Fall Case

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED... IN THIS INTERSECTION TRAFFIC ACCIDENT CASE, ALTHOUGH THE STATE DEMONSTRATED...