Supreme Court Justice Finds Parolee's Constitutional Rights Violated; Victory for Parole Revocation Defense Unit and Criminal Appeals
TUESDAY, AUGUST 24, 2010

Supreme Court Justice Sharon A.M. Aarons in the Bronx ruled that the constitutional rights of Jonathan Vasquez, a parolee, had been violated during an illegal search and granted his petition for a writ of habeas corpus. The decision was a victory for Martin LaFalce, an attorney in the Parole Revocation Defense Unit, and Elon Harpaz, an attorney in the Criminal Appeals Bureau, who represented Mr. Vasquez. The case illustrates the importance of the Criminal Practice's attorney resource program.

 

The New York Law Journal
Parole Officer Provided 'Cover' for Illegal Search, Court Rules
By Daniel Wise
08-24-2010

A Staten Island parole officer fatally compromised his search of a released inmate's bedroom because he was acting as the agent of a police officer rather than conducting a bona fide search to discover parole violations, a Supreme Court justice in the Bronx has ruled.

Since parole officer Kevin O'Connor had acted "to supply a cover of legality to a warrantless entry by the police into a private dwelling," Justice Sharon A.M. Aarons found that parolee Jonathan Vasquez's constitutional rights had been violated and granted his petition for a writ of habeas corpus.

Justice Aarons, in People ex. rel. Vasquez, 252776-09, also suppressed the use of the box cutter and knife discovered in the search of Mr. Vasquez's home in any parole revocation proceeding against him.

After serving his full two-year term for second-degree assault, Mr. Vasquez returned home to Staten Island in April 2009 under post-release supervision. He resumed living in a two-story house with his mother and four siblings.

Five months later, Detective Michael Guariano called Mr. O'Connor to ask him to search the Vasquez family home. Mr. Guariano explained that he expected that a gun would be found there because an eyewitness had identified Mr. Vasquez as having fired shots into the rectory of a Catholic church across the street from his home.

After consulting with a senior parole officer, John Zwaryczuk, Mr. O'Connor agreed to conduct the search but to limit it to Mr. Vasquez's bedroom because others lived in the house.

Mr. O'Connor, Mr. Zwaryczuk, Mr. Guariano and two other New York City police officers convened at the Vasquez home on Sept. 29, 2009.

Mr. O'Connor and one of the other law enforcement officers, who was not identified in the opinion, conducted a search of Mr. Vasquez's bedroom. There they discovered the box cutter and 12-inch rusty knife on the top of an armoire, but no gun.

Mr. Vasquez was subsequently charged with firing shots into the rectory, but the criminal case was later dropped.

He was also charged with violating the terms of his post-release supervision for possessing the box cutter and knife.

At a preliminary hearing, an administrative hearing officer found "probable cause" that Mr. Vasquez had violated a condition of his release. But the violation of post-release supervision case was dropped and Mr. Vasquez was never re-incarcerated for the parole violation, said Marc Violette, a spokesman for the state Division of Parole. Mr. Vasquez's post-release supervision ends on Oct. 28.

Mr. Violette said Mr. O'Connor continues to work as a parole officer on Staten Island.

People on parole or post-release supervision are subject to searches that would otherwise not be permissible, Justice Aarons acknowledged in her decision. Nonetheless, she stated, parolees do not "surrender their rights against unreasonable searches and seizures in violation of the Fourth Amendment."

In 1977, Justice Aarons wrote, the New York Court of Appeals formulated the test for determining what searches of parolees are valid in People v. Huntley, 43 NY2d 182: Is the parole officer's search "rationally and reasonably related to the performance of his duty as a parole officer." The answer to that question in Mr. Vasquez's case, Justice Aarons determined, is no.

"The purpose of the search," she wrote, was not to ascertain whether [Mr. Vasquez] had violated the conditions of his parole, but the parole officers were acting as agents of the police as they searched for a gun in the aid of a criminal prosecution," she found. In so acting, she added, the parole officers had "enabled the police to circumvent constitutional requirements."

Mr. Vasquez was represented by Elon Harpaz of the Legal Aid Society Assistant Attorney General Michael Arcati represented the parole officers.