Opinion
2014-06-20
In the Matter of Darryl FREEMAN, Petitioner–Appellant, v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of Counsel), for Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of Counsel), for Respondent–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY AND DeJOSEPH, JJ.
MEMORANDUM:
On appeal from a judgment denying his petition seeking to annul the determination denying him parole release, petitioner contends that the Parole Board, in rendering its decision, erred in relying solely on the severity of his offense, which involved the non-fatal shooting of a police officer. Pursuant to Executive Law § 259–i(2)(c)(A), the Parole Board must consider eight enumerated factors in determining whether to release an inmate to parole supervision, and may place “greater emphasis on the severity of the crime[ ] than on the other statutory factors” (Matter of MacKenzie v. Evans, 95 A.D.3d 1613, 1614, 945 N.Y.S.2d 471,lv. denied19 N.Y.3d 815, 2012 WL 5258825;see Matter of Patterson v. Evans, 106 A.D.3d 1456, 1457, 966 N.Y.S.2d 303,lv. denied22 N.Y.3d 912, 975 N.Y.S.2d 732, 998 N.E.2d 395;Matter of Huntley v. Evans, 77 A.D.3d 945, 947, 910 N.Y.S.2d 112). Here, the record establishes that, although the Parole Board placed heavy emphasis on the severity of petitioner's offense, it did not solely consider that factor. Indeed, in its decision, the Parole Board noted petitioner's “educational and program accomplishments,” as well as his letters of support, and it cannot be said that the Parole Board's determination that petitioner is not yet suitable for release was “so irrational under the circumstances as to border on impropriety” (Matter of Friedgood v. New York State Bd. of Parole, 22 A.D.3d 950, 951, 802 N.Y.S.2d 268;see Comfort v. New York State Div. of Parole, 68 A.D.3d 1295, 1297, 890 N.Y.S.2d 700).
Petitioner further contends that Executive Law § 259–c (4) should be applied retroactively to his hearing, which was held in July 2011. It is well settled that “statutes are presumptively prospective in their application absent an express legislative intent to the contrary” ( Morales v. Gross, 230 A.D.2d 7, 9, 657 N.Y.S.2d 711;see Matter of Mulligan v. Murphy, 14 N.Y.2d 223, 226, 250 N.Y.S.2d 412, 199 N.E.2d 496). Here, “by specifying an effective date of an amendment to Executive Law § 259–c (4) that postdated [petitioner's] parole hearing, ‘the [l]egislature evinced its intent that the provision’ only be applied prospectively” (Matter of Davidson v. Evans, 104 A.D.3d 1046, 1046, 960 N.Y.S.2d 756;see Matter of Joyner v. New York State Div. of Parole, 114 A.D.3d 792, 792–793, 980 N.Y.S.2d 267;Matter of McCaskell v. Evans, 108 A.D.3d 926, 927, 969 N.Y.S.2d 603).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.