Opinion
104983/10.
July 30, 2010.
The application by pro se petitioner pursuant to Article 78, for an order annulling respondent's March 26, 2010 determination pursuant to Executive Law § 259-j, is denied.
Petitioner asserts that he was a parolee under the supervision of the New York State Division of Parole pursuant to Executive Law Article 12-B within the County and State of New York. On March 25, 2002, petitioner plead guilty to Penal Law § 150.15, Conspiracy in the Second Degree as a lesser offense of Criminal Sale of a Controlled Substance in the Second Degree pursuant to Penal Law § 220.41, Petitioner was released to parole supervision on November 25, 2008.
On April 7, 2010, respondent served upon petitioner a Merit Termination Worksheet and Decision denying his discharge from parole supervision pursuant to Executive Law § 259-j, on the ground that petitioner has a juvenile delinquent criminal history and respondent deferred further review of petitioner's discharge from parole for twelve (12) months. Petitioner argues that Executive Law § 259-j (1) does not state that respondent is granted with an administrative duty to consider his unrelated prior juvenile delinquent adjudications as a statutory factor to defer his discharge from parole. Petitioner contends that his prior juvenile adjudications should not have been considered by respondent when making a discretionary determination for possible discharge from parole under Executive Law § 259-j.
Petitioner also argues that Executive Law § 259-j(3)(a) does not grant the respondent the authority to defer petitioner's discharge from parole supervision past the two year statutory deadline. Since petitioner was initially released to parole supervision on November 25, 2008, he must be discharged from parole supervision on November 25, 2010. Petitioner contends that respondent's discretionary determination entered on March 26, 2010, extending petitioner's parole supervision past the two year statutory requirement to Executive Law § 259-j (3)(a) was in violation of the lawful procedure of Executive Law § 259-j and was, therefore, an abuse of discretion.
Respondent submits a verified answer in opposition to petitioner's application and asserts that petitioner was sentenced on April 16, 2002 to an indeterminate sentence of 5 to 15 years in prison upon his plea of guilty to Conspiracy in the Second Degree. The maximum expiration date for petitioner's sentence is February 16, 2015. On or about November 24, 2008, petitioner was released to parole supervision. On February 23, 2010, petitioner was determined to be eligible for discharge from parole supervision by reason of merit termination of sentence. Respondent reviewed petitioner's merit termination and by Merit Termination Worksheet and Decision dated March 26, 2010, petitioner was denied discretionary merit termination of sentence and discharge from parole release supervision and the decision was deferred for one year.
Respondent contends that the Division of Parole's decision to deny petitioner discretionary merit termination was not an abuse of discretion under the statute. Therefore, petitioner's claim is without merit. First, petitioner does not qualify for mandatory termination of parole release supervision. Executive Law § 259-j (3-a) states that the Division of Parole must grant termination of sentence in two situations: ". . . after three years of unrevoked presumptive release or parole to a person serving an indeterminate sentence for a class A felony offense defined in article two hundred twenty of the penal law and must grant termination of sentence after two years of unrevoked presumptive release or parole to a person serving an indeterminate sentence for any other felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law."
Since petitioner herein was sentenced on a violation to Conspiracy in the Second Degree in violation of Penal Law § 150.15 and was not serving a sentence for an offense defined in either Penal Law § 220 or 221, respondent contends that he does not qualify for mandatory termination of parole supervision under Executive Law § 259-j (3-a). Respondent argues that the underlying circumstances of petitioner's crime and whether or not he pleaded down from another offense defined in Penal Law § 220 or 221 is irrelevant to the applicability of Executive Law § 259-j (3-a) because the statute deals with the offense for which petitioner actually serves his indeterminate sentence.
Next, respondent argues that it did not abuse its discretion by denying petitioner discretionary merit of termination of parole release supervision because Executive Law § 259-j (1) states that the division of parole may grant to any person a merit termination of sentence from parole prior to the expiration of the full term or maximum term provided that it is determined by the division of parole that such merit termination is in the best interests of society. Respondent asserts that while petitioner is correct that Executive Law § 259-j(l) does not explicitly require the Division of Parole to consider his juvenile delinquency adjudications as a statutory factor in determining whether to grant him a merit termination of his sentence, the statute does not preclude respondent from considering petitioner's juvenile delinquency history. Respondent contends that the statute permits consideration of a wide variety of matters which would include petitioner's juvenile delinquency adjudications. Accordingly, petitioner's criminal history and juvenile delinquency history would be relevant to whether merit termination of parole supervision is in the best interests of society.
Respondent also asserts that the Appellate Division, First Department has held that the parole board has complete discretion under Executive Law § 259-j to discharge a person from parole. Since the determination to deny petitioner discretionary termination of parole release was made in accordance with Executive Law § 259-j, the Division of Parole's determination is not subject to judicial review. Petitioner has failed to show that respondent's decision was irrational or bordered on impropriety. Therefore, the petition should be dismissed.
In reply, petitioner argues that Executive Law § 259-I (a) explicitly lists the factors or guidelines that respondent must consider when making any discretionary determination involving a parolee's criminal history or juvenile history. Petitioner contends that respondent was statutorily mandated by Executive Law § 259-I(a) when considering petitioner's conspiracy conviction to consider the petitioner's overt acts in furtherance of the conspiracy to determine whether there were any mitigating or aggravating factors to determine if petitioner's discharge from parole supervision was in the best interests of society. Moreover, respondent's discretionary determination entered on March 26, 2010, denying petitioner's merit termination of sentence pursuant to Executive Law § 259-j based upon petitioner's juvenile history without the record reflecting consideration of the mitigating or aggravating factors of those adjudications demonstrates that respondent's determination was arbitrary, capricious, unreasonable and contrary to law.
This court finds that respondent's determination denying petitioner's discretionary termination of parole release was not arbitrary, capricious or irrational nor was it contrary to law. Executive Law § 259-j does not explicitly preclude respondent from considering petitioner's juvenile delinquency adjudications and merely states that, "The division of parole may grant to any person a merit termination of sentence from presumptive release, parole, conditional release or release to post-release supervision prior to the expiration of the full term or maximum term provided it is determined by the division of parole that such merit termination is in the best interests of society . . ." Petitioner herein has failed to show that the parole board's consideration of his juvenile delinquency violent felony offenses were in any way contrary to the statute.
Additionally, petitioner did not show that he qualified for mandatory termination of parole release supervision due to the fact that he was initially indicted for several offenses including Penal Law § 220.41. Executive Law § 259-j(3-a) states that, "The division of parole must grant termination of sentence after three years of unrevoked presumptive release or parole to a person serving an indeterminate sentence for a class A felony offense defined in article two hundred twenty of the penal law, and must grant termination of sentence after two years of unrevoked presumptive release or parole to a person serving an indeterminate sentence for any other felony offense defined in article two hundred twenty or two hundred twenty-two of the penal law." The statute is clear that termination of sentence is mandatory for a person serving an indeterminate sentence for offenses under article 220 of the Penal Law. Petitioner's sentence herein was pursuant to a charge of Conspiracy in the Second Degree pursuant to Penal Law § 150.15 and not Penal Law § 220 or 221. Therefore, petitioner did not qualify for mandatory termination of parole release supervision and his application under Article 78 pursuant to that ground, is denied.
The Appellate Division, First Department in the case of People ex rel. Allah v. New York State Bd of Parole , 158 A.D.2d 328 (1[st] Dept. 1990) ruled that, ". . . the Parole Board has complete discretion underExecutive Law § 259-j to discharge a person from parole: `If the board of parole is satisfied that an absolute discharge from parole . . . is in the best interests of society, the board may grant such a discharge prior to the expiration of the full maximum term'". Since respondent's determination denying petitioner's merit termination of sentence was within the discretion of the parole board and was not contrary to Executive Law § 259-j, petitioner's application annulling respondent's March 26, 2010 determination is denied.
Accordingly, it is hereby
ADJUDGED, that the petition is denied and the proceeding is dismissed, without costs and disbursements to the respondent.