Opinion
1655-09.
Decided June 26, 2009.
Claude E. Davis, Petitioner, Pro Se, Attica Correctional Facility, Attica, NY. Andrew M. Cuomo, Attorney General.
State of New York, Attorney for Respondent, The Capitol, Albany, New York, (Aaron M. Baldwin, Assistant Attorney General of Counsel),
The petitioner, an inmate at the Attica Correctional Facility, has commenced the instant CPLR Article 78 proceeding for review of a determination by the Board of Parole denying his application for discretionary release. Respondent Henry Lemons, Jr., Acting Chairman of the New York State Division of Parole, opposes the petition, seeking its dismissal.
Currently, the petitioner is serving an indeterminate term of three to six years upon a plea of guilty to the crime of Identity Theft, First Degree, as a second-time felony offender. The underlying offense was committed in October 2005 when, at the age of 34, the petitioner used his father's Social Security Number on a credit application to obtain a loan of approximately $40,000 to purchase a vehicle. Approximately two months after the petitioner purchased the vehicle, his use of his father's Social Security Number came to light and he was arrested. As part of his sentence, the petitioner was directed to pay $41,774.98 in restitution ( see Uniform Sentence Commitment [dated 4-18-06], Answer, Exhibit A).
The plea agreement, including the ordered restitution, satisfied the charge for the above-described crime as well other pending charges in different Courts. The ordered restitution was reduced to civil judgments.
On July 15, 2008, the petitioner made his initial appearance before the Parole Board. At that appearance, the Parole Board discussed the instant offense and attendant circumstances with the petitioner. The Parole Board also discussed with the petitioner his lengthy criminal record, noting that the petitioner has 9 felony convictions following 27 arrests (15 for felonies and 12 for misdemeanors). The Parole Board made note of the petitioner's clean disciplinary record and program achievements. It also mentioned the petitioner's post-release plans, including the petitioner's proposal to live in Virginia and letters of reasonable assurance for jobs in both New York and Virginia. The Parole Board noted that the petitioner had "put together" a nice packet, allowing petitioner an opportunity to specifically highlight any materials in that packet. Moreover, the Parole Board also allowed the petitioner an opportunity to discuss any matters he felt relevant for it to consider. At one point, the Parole Board inquired whether the petitioner was going to pay his parents back the $13,000 that has destroyed their credit, to which he responded "correct" ( see Parole Board Hearing Transcript at 7, id., Exhibit E).
Following the hearing, the Parole Board issued its decision in which it denied the petitioner discretionary release and issued a 24-month hold. That decision provided:
Despite your receiving an Earned Eligibility Certificate, Parole is denied.
After a careful review of your record, your personal interview and due deliberation, it is the determination of this Panel that, if released at this time, there is a reasonable probability that you would not live at liberty without violating the law, and your release at this time is incompatible with the welfare and safety of the community.
This decision is based upon the following factors: You appear before this Panel with the serious instant offense of identity theft first; wherein, you assumed the identity of another person in order to obtain credit to purchase a vehicle. You were on Parole at the time of the crime.
This crime culminates an extensive criminal history filled with larceny, burglary and attempted escape. You have felony convictions and multiple State incarcerations. You have a well established pattern of criminal behavior.
Consideration is given to the receipt of an EEC, program completion and satisfactory behavior; however, your release at this time is denied (Decision, id., Exhibit F).
Subsequently, the petitioner administratively appealed the Parole Board's decision. After the Appeals Unit did not issue a timely determination regarding that appeal, the petitioner commenced this instant CPLR article 78 proceeding for review of the Parole Board's decision. In this proceeding, the petitioner first argues that the Appeals Unit's failure to issue a timely determination regarding his administrative appeal violates his constitutional rights. Based on these claims that 9 NYCRR 8006.4 (c) is unconstitutional, the petitioner requests that this Court issue a Writ of Habeas Corpus directing that he be released to parole supervision. Otherwise, he argues that the Parole Board (1) failed to consider his sentencing minutes; (2) failed to consider his Earned Eligibility Certificate; (3) relied on erroneous facts; and (4) failed to consider his programing and disciplinary record, essentially arguing that Parole Board did not properly consider and weigh the necessary statutory factors. The petitioner also contends that he was not timely interviewed by institutional staff to prepare for his parole hearing and, thus, his intent to seek out of state residency was not properly considered.
As to the petitioner's argument that 9 NYCRR 8006.4 (c) is unconstitutional, this Court already considered and rejected that argument in its prior Decision and Order in this matter. In that Decision and Order the Court explained:
That regulation provides:
Should the appeals unit fail to issue its findings and recommendation within four months of the date that the perfected appeal was received, the appellant may deem this administrative remedy to have been exhausted, and thereupon seek judicial review of the underlying determination from which the appeal was taken. In that circumstance, the division will not raise the doctrine of exhaustion of administrative remedy as a defense to such litigation.
The failure of the Appeals Unit to render a decision within four months operates only to permit the inmate to resort to intermediate judicial review without being met with a defense of failure to exhaust administrative remedies ( see 9 NYCRR § 8006.4 [c]; see also, Matter of Lord v State of New York Executive Department Board/Division of Parole, 263 AD2d 945 [3rd Dept., 1999], lv denied 94 NY2d 753; Matter of Tyler v Travis, 269 AD2d 636 [3rd Dept., 2000]). That would be the case here. Thus the Court discerns no violation of a constitutional or statutory right ( Matter of Davis v Lemons, Sup Ct, Albany County, April 14, 2009, Ceresia, J., Index No. 1655-09).
The Court will not revisit the issue and, thus, will not issue a Writ of Habeas Corpus directing the petitioner's immediate release. In any event, the appropriate remedy to any successful challenge of a parole determination is to remit the matter for a new hearing ( see Lichtel v Travis, 287 AD2d 837, 838 [3d Dept 2001]).
Otherwise, Executive Law § 259-i (2) (c), in relevant part, provides that the following factors shall be considered by the Board in making a decision regarding discretionary parole release:
"(i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services . . .; and (v) any statement made to the board by the crime victim or the victim's representative . . ."
Further, where, such as here, a petitioner's minimum period of imprisonment was not fixed pursuant to the provisions of Executive Law § 259-i (1), but rather by the sentencing Court, the Board must also consider the following factors from Executive Law § 259-i (1) (a):
"(i) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest and prior to confinement; and (ii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement. . . ." ( see also Matter of Santos v New York State Div. of Parole, 234 AD2d 840, 840 [3d Dept 1996]).
"It is well settled that parole decisions are discretionary and will not be disturbed so long as the statutory requirements set forth [above] are met" ( Matter of Turner v Dennison , 24 AD3d 1074 , 1074 [3d Dept 2005]; see Matter of Mendez v New York State Bd. of Parole , 20 AD3d 742 , 742 [3d Dept 2005]). Moreover, "[j]udicial intervention is warranted only when there is a showing of irrationality bordering on impropriety'" ( Matter of Silmon v Travis, 95 NY2d 470, 476, quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77; see Matter of Cartagena v New York State Bd. of Parole , 20 AD3d 751 , 752 [3d Dept 2005], lv dismissed 6 NY3d 741; Matter of Farid v Travis , 17 AD3d 754 , 754 [3d Dept 2005], lv dismissed 5 NY3d 782).
Here, for the reasons discussed below, the Parole Board has considered the relevant statutory factors in exercising its discretion to deny the petitioner parole ( see Matter of Abascal v New York State Bd. of Parole , 23 AD3d 740 , 741 [3d Dept 2005]). Contrary to the petitioner's argument, the Parole Board may consider the seriousness of the underlying crime as well as the petitioner's overall criminal background and is "not required to give equal weight to the statutory factors it considered in reaching its discretionary determination" ( Matter of Freeman v New York State Div. of Parole , 21 AD3d 1174, 1175 [3d Dept 2005]). Both the interview transcript, the determination and the record before the Parole Board demonstrate that the Board also considered, inter alia, the petitioner's institutional achievements, his clean disciplinary record, post-release plans, and the pre-sentence report ( see Matter of Watford v Travis , 16 AD3d 850 , 851 [3d Dept 2005]). In addition, the Parole Board allowed the petitioner an opportunity to highlight matters in the parole packet he submitted to it and to discuss any other matter he felt warranted the Parole Boards' attention ( see Matter of Serna v New York State Div. of Parole, 279 AD2d 684, 684-685 [3d Dept 2001]).
While the respondent concedes that the Parole Board failed to consider the sentencing minutes, a review of those minutes and the hearing transcript establish that such an error was harmless ( see Matter of Motti v Alexander , 54 AD3d 1114 , 1115 [3d Dept 2008]; Matter of Schettino v New York State Div. of Parole , 45 AD3d 1086 , 1086 [3d Dept 2007]). Those minutes do not contain any specific sentencing recommendations by the Judge, and any comments made by the Judge and others during the sentencing proceeding were not favorable to the petitioner. Moreover, to the extent that the petitioner argues that these minutes would have resolved a purported misconception by the Parole Board that the petitioner owed his parents $13,000, this argument is not persuasive. First, review of the sentencing minutes by the Parole Board is for the purpose of sentencing recommendations ( see Executive Law § 259-i; see also Matter of Edwards v Travis, 304 AD2d 576, 576 [2d Dept 2003]). Additionally, the petitioner failed to clear up any misconception that the Parole Board had about monies he may owe to his father. During the hearing when the Parole Board asked if he still owed $13,000 to his father, the petitioner responded by saying "correct" ( see Parole Board Hearing Transcript at 7, Answer, Exhibit E). Thus, he had the opportunity to explain to the Board that he did not owe his father that money because it had been reduced to judgment in favor of Chrysler. Instead of taking advantage of that opportunity, the petitioner simply agreed with the comment and now seeks to have a de novo hearing in front of a new panel to clear up that purported error. These circumstances do not warrant such relief.
As to the earned eligibility certificate issue, "[p]ursuant to Correction Law § 805, an inmate who, like [the] petitioner, is serving a minimum term of not more than eight years and has been issued a certificate of earned eligibility, shall be granted parole release at the expiration of his minimum term . . . unless the board of parole determines that there is a reasonable probability that, if such inmate is released, he will not live and remain at liberty without violating the law and that his release is not compatible with the welfare of society'"( Matter of Romer v Dennison , 24 AD3d 866 , 867 [3d Dept 2005], lv denied 6 NY3d 706. Thus, "[c]ontrary to [the] petitioner's assertion, the receipt of an earned eligibility certificate does not preclude the Board from denying parole" ( id.; see Matter of Corley v New York State Div. of Parole , 33 AD3d 1142 , 1143 [3d Dept 2006]) and, further, the record establishes that the Parole Board considered the certificate in rendering its determination.
Finally, the record shows that the petitioner was interviewed by institutional staff to prepare for his parole hearing on June 23, 2008 and not the 30-minutes prior to the interview as the petitioner claims ( see Inmate Status Report for Parole Board Appearance, Answer, Exhibit C). Moreover, the Parole Board specifically discussed the petitioner's post-release plans, including his desire to move to Virginia.
Otherwise, the Court has reviewed and considered petitioner's remaining arguments and contentions and finds them to be without merit. Thus, since petitioner has failed to meet his burden of showing the Parole Board's determination exhibited irrationality bordering on impropriety, judicial interference is unwarranted ( Matter of Silmon, 95 NY2d at 476; Matter of Farid, 17 AD3d at 754). Accordingly, it is
ORDERED and ADJUDGED that the relief requested is denied; and it is further
ORDERED and ADJUDGED that the petition is hereby dismissed.
This shall constitute the decision, order and judgment of the Court. All papers are returned to the attorney for the Respondent who is directed to enter this Decision/Judgment without notice and to serve petitioner with a copy of this Decision/Judgment with notice of entry.