While a person on parole is not denied the Fourth Amendment right to be free from unreasonable searches and seizures, the status of a parolee is always relevant and may be critical in evaluating the reasonableness of a particular search or seizure. A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee … . The special circumstances and close supervision that come with being a parolee must be considered when determining if a search is reasonable … .

Under the circumstances of this case, the detective’s search of the car was “rationally and reasonably related to the performance of the parole officer’s duty” by dint of the detective’s parole responsibilities as a member of the Joint Apprehension Warrant Squad … . Here, no relevant distinction exists between the detective and the defendant’s parole officer … . At the time of the search, the detective was aware that the defendant had violated the terms of his parole, that as a result a warrant had been issued for the defendant’s arrest …, and that the defendant had consented in writing to a search of his person and property. Additionally, the detective was aware that the car was registered to the defendant, the defendant had acknowledged that the car was his, and a known source had said that she had been told that the defendant had just been in the car with a gun … . People v McMillan, 2015 NY Slip Op 05702, 2nd Dept 7-1-15

To establish a claim of false imprisonment, claimant must demonstrate, among other things, that the confinement was not privileged … . “To that end, it is settled that ‘[a]n otherwise unlawful detention is privileged where the confinement was by arrest under a valid process issued by a court having jurisdiction or parole authorities'” … . Here, there is no dispute that claimant’s confinement was pursuant to parole violation warrants that were valid on their face. Yet, according to claimant, because his sentence should have terminated by law on March 10, 2005, the Division acted without jurisdiction when it commenced the April 2005 parole revocation proceeding, revoked his parole and thereafter subjected him to various periods of incarceration.

“‘There is a distinction between acts performed in excess of jurisdiction and acts performed in the clear absence of any jurisdiction over the subject matter. The former is privileged, the latter is not'” … .

While the [Division of Parole’s] ….interpretation of Executive Law former § 259-j (3-a) may well have been mistaken, any such “error in judgment neither negates nor defeats defendant’s claim of privilege” … . The statute vested the Division with the authority to grant a termination of sentence under certain described circumstances, and interpreting the provisions that implement such power is a legitimate part of the Division’s function .. . The Division made a reasoned judgment …[which] was neither inconsistent with nor contrary to extant judicial authority … . Thus, at most, the Division “acted in excess of its jurisdiction, not in the complete absence [thereof], and its conduct therefore was privileged”… . Marsh v State of New York, 2014 NY Slip Op 03320, 3rd Dept 5-8-14

It is, of course, well established — as a matter of common law and also of due process — that “a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial” … . The State contends that parole revocation proceedings do not raise the same concerns because parole revocation is not part of a criminal prosecution.

It is true that parole revocation deprives an individual only of “a restricted form of liberty” and thus implicates “some form of due process [but] not the full panoply of rights due a defendant in a criminal proceeding” … . Just as due process requires us to safeguard the liberty of parolees, we must also recognize the state’s strong interest in effectively managing parolees without unduly burdensome procedural restraints … . However, in balancing these competing interests, we conclude that several of the reasons underlying the bar against prosecuting a mentally incompetent defendant apply also to parole revocation hearings. Clearly salient are constitutional concerns about the fundamental fairness of a proceeding in which a defendant who is unable to make decisions about his defense may be returned to prison. But foremost is the concern already mentioned, about the accuracy of the proceedings. An incompetent parolee is not in a position to exercise rights, such as the right to testify and the opportunity to confront adverse witnesses (see 9 NYCRR 8005.18 [b] [2], [4]), that are directly related to ensuring the accuracy of fact-finding. It is true, as the State emphasizes, that the parolee is guaranteed a right to representation by counsel at the revocation hearing. But representation is not enough. A parolee must be able to provide the factual underpinnings of the presentation.

We conclude, therefore, that holding a parole revocation hearing after a court has deemed the parolee to be mentally incompetent violates the due process provision in our State Constitution… . Matter of Lopez v Evans, 2015 NY Slip Op 02868, CtApp 4-7-15

The application of Executive Law former § 259-j(3-a) to this petitioner did not squarely fit within the express purpose of the 2004 DLRA. The 2004 DLRA was intended to grant specific relief to a clearly identified and circumscribed class, namely, “low level non-violent drug offenders” … . A “manager of a drug ring” cannot be deemed to be the low level offender contemplated by the statute. Further, it is unreasonable to perceive someone convicted of conspiracy to murder as “nonviolent.”

Notwithstanding the foregoing, the petitioner seeks more than the benefit heretofore conferred upon him by the 2004 DLRA and Executive Law former § 259-j(3-a). He seeks, in effect, to bootstrap the sentence imposed on the conspiracy conviction to the sentences imposed on the drug-related convictions in an attempt to discharge the remaining term thereof. However, this attempt must fail for the following reasons.

First, Executive Law former § 259-j(3-a) applies only to the specific drug-related felony offenses set forth in articles 220 and 221 of the Penal Law (see Correction Law § 205[4]). That statute cannot be reasonably construed to terminate the petitioner’s sentence on the conspiracy conviction, a non-drug-related conviction. The outcome sought by the petitioner is contrary to established precedent. Courts applying the DLRA are “not given the discretion to fashion new sentences or add terms of imprisonment, but are constrained to make an existing sentence determinate in the manner dictated by the DLRA” … .

Second, we disagree with the petitioner’s reading of Penal Law § 70.30(1) … . * * * The express language of Penal Law § 70.30(1) states that the maximum terms shall “be satisfied by discharge of the term which has the longest unexpired time to run.” … [A]t the time that [petitioner] became eligible for relief under Executive Law former § 259-j(3-a), none of the terms had expired or been discharged. The application of Executive Law former § 259-j(3-a) operated to effectively shorten the maximum term of his drug-related sentences (i.e., life) to the approximately 16 years that the petitioner served. Thus, upon the application of the early-termination provision under Executive Law former § 259-j(3-a), the maximum term of his sentence on the conspiracy conviction, which was 25 years, had the longest unexpired time to run (see Penal Law § 70.30[1][a]). People ex rel. Baez v Superintendent, Queensboro Corr. Facility, 2015 NY Slip Op 01827, 2nd Dept 3-4-15

because only the Board of Parole is authorized to impose the conditions of a term of postrelease supervision (…Penal Law § 70.45 [3]; Executive Law §§ 259-c [2]; 259-i [3], [4]), County Court erred to the extent that it imposed certain conditions of defendant's postrelease supervision at sentencing and the conditions should be stricken. Similarly, inasmuch as neither a fine nor restitution was mentioned at the plea proceedings, the matter must be remitted to allow County Court to either impose the sentence that was negotiated or to give defendant an opportunity to withdraw his plea before imposing the enhanced sentence … .

In contrast, while only an order of protection against the victim was discussed during the plea agreement, “[o]rders of protection are not punitive in nature and are not necessarily dependent on, or the result of, a plea agreement” … . Accordingly, County Court did not err when it imposed an order of protection in favor of the victim and her family at sentencing and, notwithstanding this Court's determination to remit this matter, the order of protection remains in place. People v Curry, 2014 NY Slip Op 09069, 3rd Dept 12-31-14

[T]he record establishes that the Board acknowledged petitioner’s extensive rehabilitative success along with the additional statutory factors, but placed greater emphasis on the seriousness of petitioner’s crime in its determination that release would be incompatible with the welfare of society and so deprecate the seriousness of the crime as to undermine respect for the law, as it is “entitled” to do … . We are thus constrained to affirm — to do otherwise is to implicitly overrule the decades of our well-settled jurisprudence set forth above … . Matter of Hamilton v New York State Div of Parole, 2014 NY Slip Op 05487, 3rd Dept 7-24-14

While parole violators may indeed apply for resentencing, denial of such an application may be warranted if they “have shown by their conduct that they do not deserve relief from their sentences” … . Defendant has a violent criminal history and, indeed, his most recent criminal conviction and parole violation stem from his possession of a defaced and loaded handgun. The record further reveals that defendant has a lengthy record of serious prison disciplinary infractions, many of them involving violence. We thus find that, notwithstanding defendant’s positive programming achievements while incarcerated, “County Court properly exercised its discretion in finding that substantial justice would not be served by resentencing” him … . People v Allen, 2014 NY Slip Op 04087, 3rd Dept 6-5-14

“It is well established that a parole revocation decision will be upheld so long as ‘the procedural requirements were followed and there is evidence which, if credited, would support such determination'” … . Notably, in order to warrant revocation, the alleged parole violation must be supported by a preponderance of the evidence (see Executive Law § 259-i [3]; [f]…), which we find lacking in the record before us. * * *

The parole conditions did not clearly require petitioner to report such an insignificant encounter to his parole officer, however, and petitioner testified that he did not know that he needed to do so. Further, while the coworker’s children were occasionally present during lunch breaks at the work site, they largely remained outside the eating area and there was no showing that petitioner had any contact with the children during such times. In view of this, petitioner’s parole conditions did not plainly require him to report such information to his parole officer. Accordingly, given the absence of probative evidence supporting the charge that petitioner failed to truthfully report his activities to his parole officer, the determination finding that he violated his parole in this regard must be annulled… . Matter of Peck v Evans, 2014 NY Slip Op 04107, 3rd Dept 6-5-14

In 2011, a New York State budget enactment consolidated and modernized several state agencies and created new departments (see L 2011, ch 62). This legislation merged the New York State Department of Correctional Services and the New York State Division of Parole into a single agency, the New York State Department of Corrections and Community Supervision (see id.). At that time, CPL 440.46(1) was amended by changing “department of correctional services” to “department of corrections and community supervision,” so that now “[a]ny person in the custody of the department of corrections and community supervision,” otherwise qualified, could apply to be resentenced (CPL 440.46[1]). People v Brown, 2014 NY Slip Op 00524, 2nd Dept 1-29-14