Justice Richard Lee Price
Otero moved to vacate his parole warrant and for release from custody. He alleged the Department of Corrections and Community Supervision (DOCCS) deprived him of his right to appeal a decision made at his final parole revocation hearing by failing to generate a verbatim record of that proceeding. DOCCS issued a parole warrant when Otero violated a condition of parole. A hearing officer found probable cause existed that Otero violated a condition of his parole, and DOCCS commenced the final parole revocation hearing, but conceded that no record was made, attributing same to a technical malfunction. DOCCS sustained the charged parole violation and recommended a 24 month time assessment, which was affirmed. Otero filed for a writ of habeas corpus, claiming that requiring him to exhaust administrative remedies would be futile as a complete record of the final revocation hearing was unavailable. The court agreed, but noted dismissal was inappropriate, stating the proper remedy was to order a de novo final hearing to cure substantive violations of a parole violator's rights at a final revocation hearing. It sustained Otero's Article 78 petition to the extent of ordering a new de novo final revocation hearing.
