Matter of Hartwell v Division of Parole

Matter of Hartwell v Division of Parole 2008 NY Slip Op 09680 [57 AD3d 1139] December 11, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

mIn the Matter of Johnny Hartwell, Appellant, v Division of Parole, Respondent.

—[*1] Johnny Hartwell, Malone, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered January 17, 2008 in Greene County, which, in a proceeding pursuant to CPLR article 78, remanded the matter to the Board of Parole for a de novo hearing.

Petitioner was convicted of murder in the second degree as well as criminal possession of a weapon in the third degree and was sentenced, respectively, to concurrent terms of 15 years to life and 3½ to 7 years in prison. In December 2006, he made his first appearance before the Board of Parole seeking parole release. His request was denied and he was ordered held for an additional 24 months. When his administrative appeal was not acted upon, he commenced this CPLR article 78 proceeding. Prior to serving an answer, respondent conceded that the Board did not have the sentencing minutes before it during the parole hearing and consented to a de novo hearing at which such minutes would be considered. Accordingly, Supreme Court rendered a judgment remanding the matter to the Board for this purpose. Petitioner filed an objection to the judgment, but Supreme Court declined to disturb it. This appeal ensued.

Petitioner challenges the Board's denial of his request for parole, arguing that it improperly based its decision on the seriousness of his crimes and past criminal history without considering the other relevant statutory factors. However, Supreme Court granted petitioner the appropriate relief by remanding the matter for a de novo hearing at which the Board is to consider petitioner's sentencing minutes (see Matter of Quartararo v New York State Div. of [*2]Parole, 224 AD2d 266 [1996], lv denied 88 NY2d 805 [1996]). In view of this, the judgment must be affirmed.

Mercure, J.P., Peters, Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.