Matter of Weinstein v Dennison

[*1] Matter of Weinstein v Dennison 2005 NY Slip Op 50518(U) Decided on April 13, 2005 Supreme Court, New York County Kornreich, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2005
Supreme Court, New York County

In the Matter of Herbert Weinstein, Petitioner,

against

Robert Dennison, Chairman, New York State Division of Parole, Respondent.



109871/04

Shirley Werner Kornreich, J.

Petitioner, a 79 year-old inmate who has served more than 12 years of a 7 to 21 year manslaughter sentence, brings this CPLR Article 78 petition seeking to reverse respondent's third determination denying him parole and issuing a 24 month hold. He now asks for hearing de novo.[FN1] Respondent cross-moved for dismissal due to improper venue (CPLR §506(b)) and for failure to state a claim upon which relief can be granted. Upon denial of the motion by the Court,[FN2] respondent answered, opposing the petition.

Facts [*2]

The parties do not appear to dispute the underlying facts. The submissions by the parties include: the October 19, 1992 plea minutes and the pre-sentence report; the October 1999, October 2001 and October 2003 decisions of the Parole Board denying petitioner parole; petitioner's 2003 pre-hearing statement to the Parole Board; the Inmate Status report for the 2003 hearing;[FN3] eight certificates memorializing petitioner's completion of programs in alternatives to violence, behavior modification and therapy; letters from the prison Rabbi, petitioner's correctional counselor, his children, friends and his brothers; the minutes of the October 14, 2003 Parole Board hearing; the October 15, 2003 decision denying parole; and the administrative decision affirming the Board's denial of parole. The submissions establish the following facts.

On October 19, 1992, petitioner pled guilty to Manslaughter in the First Degree and was sentenced, upon recommendation of the District Attorney, to an indeterminate sentence of 7 to 21 years on December 14, 1992. Mr. Weinstein, an advertising executive, whose first wife had died of cancer, pled guilty to killing his second wife during an argument on January 7, 1991. His wife was beaten and strangled and her body was thrown from the twelfth floor window of their apartment. Mr. Weinstein's face and eyelids were scratched.

Mr. Weinstein's life, until the date of the crime, was unblemished. He had been a good father, a productive member of the community and a loving husband (by all accounts to both his wives), taking care of his first wife through her terminal illness. During the eleven month pendency of the criminal charges which resulted in his Manslaughter conviction, Mr. Weinstein lived, without incident, with long-time friends, free on bail. Those same friends have offered to provide him with a home should he be released, and his children and brothers appear supportive of him.

Additionally, there is no dispute but that Mr. Weinstein's institutional record is without problem. He has earned two certificates in Nonviolence Alternatives to Violence Projects, Inc., successfully completed training for trainers in the Alternatives to Violence Project, completed six months of Veteran's Therapeutic Training provided by the Department of Corrections at the Woodbourne Correctional Facility, completed the Network Behavior Modification Program while in prison, provided services to the Veterans' Self-Help Project at Greenhaven Correctional Facility, tutored inmates in basic adult education, acted as the porter of his jail block and obtained a Certificate of Earned Eligibility.

Mr. Weinstein has appeared before the Parole Board on three occasions. Parole has been denied after each appearance, the maximum 24 month hold was imposed each time and the decisions have been affirmed on administrative appeal.

The Parole Status Report, dated October 2003, lists the "Guideline Range" for Mr. Weinstein as 30 to 60 months, indicates that no statements were made by the sentencing judge or [*3]defense attorney,[FN4] indicates a sentencing statement was made by the District Attorney,[FN5] and relates that Mr. Weinstein's date of birth is March 30, 1926, that he was received by Corrections on January 7, 1993 and that he has voiced his remorse for the crime. The report further notes that Mr. Weinstein is the Block Porter where he is incarcerated, tutors inmates in the evenings and has not received any Misbehavior Reports. Finally, the Report states that Mr. Weinstein is a World War II veteran with no prior criminal record and no alcohol or drug problem.

Mr. Weinstein submitted a statement to the Board. In it, he stated his age, his status as a World War II veteran, his deteriorating health and his prior crime-free and productive life. He admitted responsibility for the crime, spoke of the remorse he felt, described himself as "plagued and tortured" and further stated that he "will forever remain haunted by [his] inexcusable actions." He repeated the circumstances of the crime and explained that he had never before had a physical altercation with his wife. Moreover, he told the Board that he was evaluated psychiatrically after the incident and was found mentally competent. However, when MRI's, PET scans and psychometric testing was done, it was found he had a large congenital cyst in the protective lining of his brain, an arachnoid cyst. He reported that, "[e]xperts were of the opinion that my cyst might be responsible for the unanticipated and totally out of character acts of violence that resulted in my wife's death."

A number of letters were written to the Board espousing Mr. Weinstein's release. Rabbi Irving H. Goodman, the prison Rabbi, and Mr. Galloway, Mr. Weinstein's prison counselor, advocated his release. Rabbi Goodman characterized Mr. Weinstein as a 77 year-old who "is certainly not a threat to society," who deeply regrets his crime and who "possesses high moral and religious values which will serve him well once he is released." Rabbi Goodman also stated, "I have truthfully not met many inmates during the 43 years I have served as a Chaplain who have the intellect, the report [sic] and the reverence that Mr. Weinstein possesses." Similarly, Mr. Galloway stated that he interacted with Mr. Weinstein often, found him to be gracious to and sharing with his fellow inmates and "an excellent candidate for parole."

Morton and Cecile Wagner, who invited him to stay with them upon his release, wrote the Board. Mr. Morton, a friend of forty years, described Mr. Weinstein as a hard-working, devoted father and husband, a loving spouse to his second wife and a temperate man. He wrote that he had never seen "any sign of conflict or hostility" between Mr. Weinstein and his second wife and, through the many years of tense business negotiations, had never seen Mr. Weinstein [*4]lose his temper. Based upon his years of visiting with Mr. Weinstein in prison, Mr. Wagner stated his belief that Mr. Weinstein was not a threat to the safety of the community or a burden to society. Mrs. Wagner, a friend of twenty-five years, too described Mr. Weinstein as a caring and responsible family man and a kind and considerate individual. She specifically referred to the nearly one year in which Mr. Weinstein lived with them after the subject incident and his remorse and stated, "I have never met a kinder or more considerate person." They both reiterated their invitation for him to stay with them upon his release.

Moreover, Mr. Weinstein's children and brother wrote the Board. His son emphasized the fact that this crime was an aberration in a blemish-free life and that Mr. Weinstein "takes responsibility for and must live with the consequences of his actions." He and his sister spoke of their father's age and deteriorating health and noted that denial of parole might well mean that their father would serve the remainder of his life in prison. Mr. Weinstein's brother Louis asked that his brother, who "is an old sick man" be permitted "to complete his remaining years with his family and friends." He characterized his brother as mild-mannered, attested to the support he would receive on release and stated his belief that his brother would not pose a threat to society. His second brother, a lawyer, submitted the instant court papers seeking this Article 78.

At the October 14, 2003 Parole Board Hearing, Mr. Weinstein was perfunctorily questioned by the Board members in regard to his age (78 years old), sentence (7 to 21 years), and denial of parole in the past. It was acknowledged that he had been awarded an Earned Eligibility Certificate and had served 11 years of his 7 to 21 year sentence. When questioned at length about the underlying crime, Mr. Weinstein explained that his wife, who was upset due to her daughter's lack of contact with her, grew angry with him when he referred to the daughter as a "spoiled brat." According to Mr. Weinstein, she then made disparaging remarks about his two children, and when he failed to respond to these remarks, grew irate and began to scratch his face in an attempt to scratch out his eyes. He claimed that he instinctively fought her off, put his hand on her throat and choked her in the ensuing struggle. Panicked, he stated, he threw her lifeless body out of the window. At the time, Mr. Weinstein had been 64 years old and had been married to his second wife for 8 years. Mr. Weinstein described that marriage as loving and warm and repeatedly voiced his remorse for the incident.

The Board also elicited that Mr. Weinstein had received a Bachelor of Science in Economics and English and had worked in advertising throughout his work life. Mr. Weinstein told the Board that if paroled, he would live with the Wagners friends for more than thirty years and subsist on his pension and social security since he did not believe that he would find work at his advanced age. In addition, he asked that the Board exercise compassion due to his age, health and regret.

The Board denied parole and directed that Mr. Weinstein be held for 24 months. It determined:

Despite issuance of an Earned Eligibility Certificate, discretionary release is

denied. Following a careful review of your record and interview, this panel

concludes that there is a reasonable probability that you would not live and

remain at liberty without violating the law. Your release is thus not presently

compatible with the public safety and welfare. Your instant offense, in January

1991, in Manhattan, you assaulted your wife causing her to lose consciousness. [*5]

You then threw her out a window from the twelfth floor. Your criminal history reveals the instant offense to be your only conviction of record. Your institutional programing reveals progress, which is noted and considered. Your disciplinaryrecord appears commendable and is likewise considered. The brutal and senseless beating and resulting death of your wife is indeed a horrible act, which is naturally

of serious concern to this panel. Despite positive institutional adjustment,

discretionary release is thus not warranted at this time. He's above the guidelines

due to excessive violence against a person, caused death of victim.

The maximum expiration date of Mr. Weinstein's sentence was noted to be December 11, 2013, and his conditional release date was noted to be December 11, 2006.

Administrative Appeal

The decision on administrative appeal notes that Mr. Weinstein, pro se, raised two claims on appeal 1) that the Board's decision was arbitrary and capricious in that it failed to consider and properly weigh the required statutory factors and merely looked at the offense; and 2) that there were no aggravating or egregious factors which could permit the Board to overrule the judgment of the District Attorney and court and illegally sentence him. The decision then ruled that the Board need not discuss each factor at the interview. It cited to Executive Law §259-i(2)(c) and 9 NYCRR §8002.3(b), acknowledging that the Board must consider all statutory criteria but stating that an inmate's criminal history, the "brutality and depravity of the offense," and the inmate's violent nature may be considered. As a result, the decision held that: "[t]he denial of parole release primarily because of the severity of the crime is appropriate"; the seriousness of the crime alone was "sufficient to constitute sufficient ground to deny parole release"; the minimum period of incarceration guidelines in 9 NYCRR §8001.3(a) are intended merely as a guide; that 9 NYCRR §8002.3 permits the Board to consider the serious and violent nature of the offense and prior criminal history; the Earned Eligibility Certificate did not require release so long as the Board considered "the statutory factors and articulate[d] its reasons for denying discretionary release"; Mr. Weinstein's argument that the Board decision amounted to a resentencing, was without merit; and that the Board sufficiently complied with Executive Law §259-i. The Board rejected Mr. Weinstein's contention that its decision was predetermined by the politics of the Executive Branch of the State.

Argument

1. Petitioner

Petitioner now argues that: 1) the Board's decision that he was a threat to society, was irrational, bordering on impropriety; 2) it was arbitrary and capricious for the Board to deny parole based solely on his crime; 3) the Board's decision was based on political pressure and public opinion and, therefore, was violative of his constitutional rights, arbitrary and capricious; 4) the decision violated the requisites of 9 NYCRR 8002.3; and 5) the Board violated administrative appeal procedures by failing to provide him with a timely copy of the Appeal Unit's Statement of Findings and Recommendations, depriving him of time to respond.

2. Respondent

In its motion to dismiss, respondent argues that petitioner, improperly raised arguments on the Article 78 which he had failed to raise at the administrative appeal. Those arguments, [*6]according to respondent, are constitutional claims and a violation of 9 NYCRR §8001.3. Respondent further argues in its motion, that the petition is insufficient to state a claim because: 1) the Board could properly give great weight to the severity of petitioner's crime; 2) Correctional Law §850 was properly followed; and 3) the Board considered all of the requisite factors set forth in the statute and regulations. In its answer, respondent elaborated on the arguments submitted in its motion.

Conclusions of Law

The workings of the Division of Parole are encompassed within Executive Law §259. Section 259-c empowers the State Board of Parole to determine the time and conditions of an inmate's release and requires that it establish written guidelines to use in making parole decisions, "including the fixing of minimum periods of imprisonment or ranges thereof for different categories of offenders." Exec. Law §§259-c (1), (4). Those guidelines, based solely on the severity of the inmate's crime and his past criminal history, are formally established in 9 NYCRR §8001.3 and "represent the policy of the board concerning the customary total time served before release for each category of offense." 9 NYCRR §8001.3(a), (b). Where an inmate is serving an indeterminate sentence and the minimum period of that sentence has been set by the court, the Board is to consider, inter alia, along with the guidelines: 1) the inmate's institutional record, including his program and academic accomplishments, work assignments, therapy and interpersonal relationships with staff and inmates; 2) his performance, if any, in a temporary release program; and 3) his release plans, including community resources, employment and support services. 9 NYCRR §8002.3(a).

Section 259-i (2) provides that a member or members of the Board must meet with an inmate one month prior to the date upon which an inmate may be paroled, for a personal interview. Should parole be denied, the inmate must be informed of the Board decision in writing within two weeks. The decision must contain detailed reasons for the denial and may not be written in "conclusory terms." Id. Again, it is stated that in making its determination, the Board must consider, inter alia, the inmate's institutional record, his performance, if any, in a temporary release program and his release plans. Id.

Finally, Corrections Law §805 creates the Earned Eligibility Program. It provides:

Persons committed to the custody of the department under an indeterminate

or determinate sentence of imprisonment shall be assigned a work and treatment program as soon as practicable. No earlier than two months prior to the inmate's eligibility to be paroled ..., the commissioner shall review the inmate's institutionalrecord to determine whether he has complied with the assigned program. If the commissioner determines that the inmate has successfully participated in the

program he may issue the inmate a certificate of earned eligibility. Notwithstanding

any other provision of law, an inmate who is serving a sentence with a minimum term of not more than eight years and who 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. [emphasis added]

See also 9 NYCRR §8002.3(c). [*7]

The statutory scheme laid out above has been interpreted over the years by the Courts. Thus, the courts have recognized that the guidelines must be carefully examined in each individual case in determining parole release but that the ultimate decision of the Board is discretionary. Tarter v. State, 68 NY2d 511, 517 (1986). Indeed, the Board's discretion is not unbridled and must be exercised in accordance with law. King v. N.Y.S. Div. of Parole, 190 AD2d 423, 430 (1st Dept.), lv. denied 82 NY2d 746 (1993); Ek v. Travis, NYLJ, Feb. 25, 2005 at 21, col. 3 (Sup. Ct., Albany Co.)(Sheridan, J.); Cappiello v. N.Y.S. Bd. of Parole, 6 Misc 3d 1010A (Sup.Ct., NY Co., 2004)(Wetzel, J.). And, since there is a strong rehabilitation component in the statutory parole scheme, the Board is mandated to consider an inmate's institutional record, release plans, the sentence imposed, recommendations of the district attorney, prior criminal record and activities following arrest and prior to confinement. Silmon v. Travis, 95 NY2d 470, 476 (2000); King supra at 431; Ek, supra. Moreover, remorse and insight are proper considerations. Silmon, id. "[W]hen there is a showing of irrationality bordering on impropriety," the court may intervene and determine if the Board's decision denying parole was arbitrary and capricious. Silmon, id.; Marino v. Travis, 13 AD3d 453, 454 (2d Dept. 2004). The Court finds that the Board's decision in this case was arbitrary and capricious.

To begin, the Court rejects respondent's procedural claim that petitioner is precluded from raising a violation of 9 NYCRR §8001.3, having failed to raise it on administrative appeal. The decision on administrative appeal specifically addresses this claim and, thereby, saves it for review here.[FN6]

The Court finds that the Board in denying Mr. Weinstein parole did not follow the law. Executive Law §259-c and 9 NYCRR §8001.3 require the Board to follow the guidelines created by the Board, guidelines based on the severity of an inmate's offense and his past criminal record. 9 NYCRR 8002.3(a), then mandates that the programs, therapy, work assignments and interpersonal relationships in prison be considered with the guidelines. Here, petitioner's parole status report listed the applicable guideline to be 30 to 60 months, a time period long passed and, in fact, less than his minimum. The Board, rather than paying this guideline any mind, simply noted that petitioner was above the guidelines due to excessive violence against a person." It, thus, ignored the long-passed guideline period, failing in any way to consider it in conjunction with the many programs and therapy successfully completed by petitioner, his work in prison tutoring and teaching fellow inmates and acting as block porter, his positive relationships with his prison counselor, the prison chaplain and his fellow inmates and his release plans which included supportive friends and family, a home and sufficient money to live.

Indeed, aside from the guidelines, Section 259-i (2) of the Executive Law required the Board to consider petitioner's institutional record, his performance, if any, in a temporary release program and his release plans. Further, as noted by the court in Silmon, supra, 95 NY2d 476, the Board is mandated to consider the sentence imposed, recommendations of the district attorney, prior criminal record and activities following arrest and prior to confinement. Other [*8]than remarking on petitioner's commendable institutional record, no focus was given to petitioner's institutional record, the recommendation of the district attorney was ignored, no comment was made about his performance in the year he remained free on bail prior to incarceration and nothing was said of his plans for release. This was far from the careful consideration of the requisite factors demanded by the statutory parole scheme. See Tarter, supra, 68 NY2d 517.

In addition, Executive Law §259-i(2) directs the Board to give detailed reasons for denying parole and prohibits the Board from stating those reasons in conclusory terms. See Boudin, 6 Misc 3d 1005A. Although, as noted by respondent and the administrative appeal decision, the Board need not specify each statutory factor considered, the Board is required to do more than merely mouth the statutory criteria, particularly where as here each factor recited and brought forth in the parole interview, other than the crime itself, militated in favor of release. See King, 190 AD2d 434( parole board breached its obligation to render a qualitative judgment based upon review of all relevant factors where mention was made of statutory factors, all of which weighed in inmate's favor, but were dismissed in light of seriousness of crime); Ek, supra, NYLJ, Feb. 25, 2005 at 21, col. 3 (Board's conclusory statement which failed to explicate the facts considered violated statutory scheme and derogated rehabilitative component underlying indeterminate sentencing).

Nor was it appropriate for the Board to focus solely on the 14 year old crime. Petitioner was properly sentenced by a court, upon the recommendation of the district attorney and in keeping with the sentencing parameters set forth by the legislature. The sentencing court decided an indeterminate term of imprisonment of 7 to 21 years was appropriate, and the district attorney made clear at the plea proceedings that its office believed the 7 year minimum sufficient in petitioner's case. The seriousness of the crime, of course, may be considered by the Board, but the "conviction per se should not preclude parole, there must be a showing of some aggravating circumstances beyond the inherent seriousness of the crime itself." King, supra at 433. Accord Phillips v. Travis, NYLJ, March 15, 2005, at 18, col. 3 (S.Ct., N.Y.Co.)(Schlesinger, J.). See also Cappiello, supra, 6 Misc 3d 1010A(although parole board is to consider severity of crime, its role is to evaluate inmate's danger to society in light of his comportment during incarceration, not to resentence him).

Finally, the Court finds that the Board's decision ran afoul of Correction Law §850 and 9 NYCRR §8002.3(c). That statutory and regulatory scheme creates a presumption favoring parole release where an inmate is serving an indeterminate sentence with a minimum period of less than 8 years and has been awarded an Earned Eligibility Certificate. Petitioner fell into this category. Consequently, he should have been granted release unless there was a reasonable probability that he would not live and remain at liberty without violating the law and his release would not be compatible with the welfare of society. See Marino, supra, 13 AD2d 453. The Board's conclusory statement simply citing to his crime failed to do this.

Nothing in the more than 14 years since his weaponless crime of passion, points to any violent behavior, danger or shortness of temper. Rather, the facts before the Board speak of a kind, temperate and insightful individual who worked hard while in prison to understand the violence of his offense and reign in whatever instincts or physical disability precipitated the crime. He is now 79 years old and ill. He is blessed with family and friends willing to provide [*9]him with support and a home upon release and enough funds to make him self-sufficient. The Board's unfounded conclusory statement that "there is a reasonable probability that [petitioner] would not live and remain at liberty without violating the law" and that his "release is thus not presently compatible with the public safety and welfare," is but an empty recitation of the statutory exception. Without any reasons, much less the required detailed reasons, and with a record which suggests otherwise, the finding is irrational bordering on impropriety. Accordingly, the Court finds the Board's decision denying petitioner parole, arbitrary and capricious and it is

Ordered that the petition is granted, the Parole Board's determination is annulled and the matter is remanded to the Division of Parole for a re-hearing which shall adhere to the mandates of Section 259 of the Executive Law, Section 850 of the Correction Law and 9 NYCRR §§ 8001.3, 8002.3.



Dated: April 13, 2005

New York, New York SHIRLEY WERNER KORNREICH Footnotes

Footnote 1: Petitioner seeks release or hearing. However, petitioner is only entitled to a new hearing, not release on this application. See Boddie v. N.Y.S. Div. of Parole, 285 F. Supp. 2d 421, 428 (S.D.NY 2003)(no entitlement to release is created by New York's parole provisions; inmate's liberty interest is limited to not being denied parole for arbitrary or impermissible reasons).

Footnote 2: CPLR §506(b) provides that a proceeding may be brought against a State official or body "in any county within the judicial district...where the material events otherwise took place...." The sentence underlying the Parole Board determination and the crime itself occurred in New York County and "are so interwoven with [the parole] determination as to constitute 'material facts' which 'otherwise took place' within the judicial district in which this proceeding was instituted." Browne v. N.Y.S. Bd. of Parole, 10 NY2d 116,122 (1961). Accord Hawkins v. Coughlin, 132 Misc 2d 45, 47 (S.Ct., Queens Co., 1986), aff'd. 132 AD2d 381 (2d Dept. 1987), aff'd. 72 NY2d 158 (1988).

Footnote 3: The 1992 pre-sentence report and portions of the parole status reports were submitted, in camera, to the Court.

Footnote 4: The sentencing minutes have not been submitted to the Court, and the Court does not know if they were presented to the Parole Board. The plea minutes, however, were a part of the record.

Footnote 5: Mr. Weinstein avers, and respondent does not refute, that the statement was one which advocated release after Mr. Weinstein had served the 7 year minimum of his indeterminate sentence. The plea minutes submitted indicate that the assistant district attorney did state: Seven years by some may not be considered to be a fairly significant sentence. However, given the defendant's age and given the fact that the years at the end of your life are in many ways more precious than the beginning, the People feel this is a sentence that satisfies the state's interest in having the defendant pay for the consequences of his deed.

Footnote 6: As noted by the court in Boddie, supra, 285 F. Supp. 2d 426, a pro se's submissions "should be held " ' "to a less stringent standards than formal pleadings drafted by lawyers." ' " Certainly here, where the administrative appeal did consider the issues now raised by petitioner, the Court should follow this tenet.