People (ex rel Small) v. Warden, Rikers Island Correctional Facility

Criminal Practice

New York Law Journal


Justice Dominic Massaro

Small sought a habeas writ ordering his release from custody, contending his final parole revocation hearing was not timely conducted. He claimed his constitutional rights were violated when he received 10 days notice, rather than 14, of a final hearing date, depriving him of due process. Respondents argued the claims were without merit as his final hearing was not held earlier than 14 days after the preliminary hearing waiver. It noted Small demanded adjournment of the case to the "K-Calendar"—a request for an open-ended adjournment of a final hearing to resolve pending felony charges. The court found respondent neither violated the 14- nor 90-day requirements regarding the holding of final parole revocation hearing. It also noted Small waived both requirements as the final hearing was not conducted earlier than 14 days after a determination of probable cause as calculated from the time he waived his preliminary hearing. The court denied the writ, concluding that Small suffered no prejudice from an adjournment to the initial preliminary hearing, was not forced into a hearing earlier than the statutorily mandated 14 days, and no 90-day violation occurred.

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