Opinion
401894/04.
Decided November 15, 2004.
Petitioner William Hyman, an inmate at the Arthur Kill Correctional Facility, appearing pro se, brings this proceeding pursuant to CPLR Article 78, challenging the Board of Parole determination which denied his application for conditional release due to his failure to secure housing that was not near an area where children would be endangered. Petitioner claims that the imposition of the requirement that he, as a convicted sex offender, obtain an approved residence before his conditional release from prison is not in accordance with law and irrational.
Petitioner is serving an indeterminate term of 8 to 16 years imprisonment for rape in the first degree. The offense for which petitioner is incarcerated involved a 15 year old girl whom petitioner abducted from the elevator of her apartment building. The record indicates that petitioner held a razor to the girl's throat and dragged her to the building's rooftop where he beat and raped her. When the instant offense occurred, petitioner had been released on parole for less than three months for a previous first degree rape conviction, which involved the rape of a 76 year old woman.
Petitioner, who was scheduled to be conditionally released on November 17, 2003, has remained incarcerated for approximately one year beyond his conditional release date. Prior to November 17th, the Board of Parole imposed special conditions governing petitioner's release, which required petitioner to reside only in a residence approved by the Division of Parole. Petitioner provided several proposed living residences, which were all denied by the Division of Parole as unsuitable, primarily due to their proximity to locations where children congregate. Petitioner brings this Article 78 application arguing that the failure of the Division of Parole to conditionally release him to either his family residences or to an outreach program is arbitrary and capricious, unlawful and a violation of his constitutional rights. Petitioner maintains that the residency restriction is unduly prohibitive in that it prevents him from living and associating with family of his choosing and that it is virtually impossible to find a place to live in New York that is not near where children congregate. Petitioner contends that he was never sentenced as a pedophile when he pled guilty to the first degree rape of the 15 year old in 1992 and thus, should not be treated or reclassified as a pedophile now without the benefit of a fair hearing. Petitioner further contends that because the Sexual Assault Reform Act (SARA), which authorizes the Division of Parole, among other things, to impose residency requirements upon sexual offenders who fall within its purview, was enacted after petitioner committed his last offense, retroactive application to petitioner violates the ex post facto clause of the United States Constitution.
In addition to residency requirements, petitioner also had to agree to maintain employment/attend a vocational program, participate in anti-aggression and sex offender counseling, and comply with the mandatory conditions imposed by the Sexual Assault Reform Act.
Respondents contend that the Board of Parole imposed special conditions governing petitioner's release were neither capricious nor irrational in light of the fact that petitioner was convicted of raping a 15 year old girl while he was on for parole for a prior rape of a 76 year old woman. Respondents contend that all of the residences that petitioner proposed were inappropriate in that they did not comply with the conditions imposed by the Parole Board. Specifically, petitioner's proposal to live at his mother's residence was rejected because there is a children's day care facility in the building. Petitioner's proposals to live with his uncle or at an alternative Brooklyn address were both rejected because they were across the street from either a park or a nursery school. Additionally, three proposed group homes were likewise rejected because they were either not receptive to accepting petitioner as a resident or did not have appropriate programing and security. Respondents claim that in the event that the petitioner provides an appropriate residence that does not endanger children and permits him to attend required programs, respondents will promptly release petitioner from the custody of the Department of Correctional Services into the jurisdiction of the Division of Parole.
Finally, respondents contend that the New York State Department of Correctional Services is not a proper party to the action as there are no allegations of its participation in the imposition of the special conditions that are at issue here and because it did not participate in the denial of petitioner's release. Thus, according to respondents, the instant proceeding against the Department of Correctional Services should be dismissed.
New York law provides for the conditional release of inmates as "[a] person who is serving one or more than one indeterminate or determinate sentence of imprisonment shall, if he so requests, be conditionally released . . . when the total good behavior time allowed to him . . . is equal to the unserved portion of his term. . . . The conditions of release, including those governing post-release supervision, shall be such as may be imposed by the state board of parole in accordance with the provisions of the executive law" (NY Penal Law § 70.40[b]). The Board of Parole shall have "the power and duty of determining the conditions of release" with respect to the individual inmate (NY Exec. Law § 259-c). The pertinent regulations establish that the Board may impose special conditions either before or after the conditional release occurs ( see 9 NYCRR 8003.3).
Petitioner's constitutional claims regarding his continued incarceration beyond his conditional release date are without merit. There is no Federal or State constitutional right for an inmate to be released before serving the full sentence ( Greenholtz v. Inmates of Nebraska Penal Correctional Complex, 442 US 1; Matter of Grimmick v. McGreevy, 141 AD2d 989 [3rd Dept 1988]). The State has discretion to place conditions on parole release ( Board of Pardons v. Allen, 482 US 369; NY Exec. Law §§ 259-c, 259-g[1-2], 259-i, 9 NYCRR 8003.2). It is well settled that the decisions of the New York State Division of Parole concerning the release of an inmate, including conditions for release, are discretionary in nature and are not subject to review, if made in accordance with law ( see NY Exec. Law § 259-c [Any action by the board or by a hearing officer pursuant to this article shall be deemed a judicial function and shall not be reviewable if done in accordance with law"]; see also Matter of Briguglio v. Board of Parole, 24 NY2d 21, 28-29; Matter of Gerena v. Rodriguez, 192 AD2d 606 [2nd Dept 1993]; NY Exec. Law §§ 259-g[1-2], 259-i, 9 NYCRR §§ 8003.2, 8003.3). This discretionary administrative policy concerning the release of an inmate do not qualify as "law" for the purpose of the ex post facto clause of the United States and New York State Constitutions, even if changes in that policy are applied retroactively and adversely affect the prisoner ( see generally, Monroe v. Travis, 280 AD2d 675 [2nd Dept 2001]; Finocchiaro v. James, 1988 WL 140865 [SDNY 1988]; DiNapoli v. Northeast Regional Parole Commission, 764 F2d 143 [2d Cir 1985]; see also Francis v. Fox, 838 F2d 1147 [11th Cir 1988]).
Here, the Parole Division's requirement that petitioner locate and reside in a suitable residence is neither arbitrary nor capricious, nor contrary to law. The special residency conditions imposed upon petitioner — whose most recent victim was 15 years old — are rationally related to his past conduct and are apparently designed to reduce society's risk of petitioner relapsing into sexual misconduct with a minor. Thus, since petitioner was unable to provide a residence that complied with the special conditions imposed by the Parole Board, respondents were unable to release him into the public. Furthermore, the determination that the proposed group homes were not suitable residences is neither arbitrary nor capricious. To the extent that the group homes would have accepted petitioner as a resident, they did not provide appropriate programs in which petitioner could participate or provide adequate security and supervision and thus, were properly rejected by the Division of Parole ( see, e.g., Monroe v. Travis, 280 AD2d 675 [2nd Dept 2001]). Accordingly, because petitioner was unable to comply with the special conditions of release regarding a suitable residence, he is not entitled to be released ( see People ex re Travis v. Coombe, 219 AD2d 881 [4th Dept 1995]; see generally, 83 NY Jur 2d Penal and Correctional Institutions § 205).
Petitioner having failed to state a cause of action on which relief can be granted, the petition is dismissed.