Matter of Key v New York State Div. of Parole

[*1] Matter of Key v New York State Div. of Parole 2006 NY Slip Op 50048(U) [10 Misc 3d 1072(A)] Decided on January 4, 2006 Supreme Court, Kings County Hinds-Radix, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 4, 2006
Supreme Court, Kings County

In the Matter of the Application of Jeffrey Key,, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law & Rules,

against

New York State Division of Parole,, Respondent.



26759/05

Sylvia O. Hinds-Radix, J.

Factual Background

Petitioner is presently incarcerated in the custody of the New York State Department of Correctional Services at Otisville Correctional Facility in Otisville, New York. He is serving an indeterminate sentence of twenty-one years to life - - - as the result of an April 22, 1985 judgment convicting him of the crime of murder in the second degree and related crimes. The Appellate Division described the underlying facts of the defendant's crime as [*2]follows: "On December 18, 1983, the defendant, Jeffrey Key, set fire to the building located at 53 Grattan Street in Brooklyn. Because of the fire, Ruby Bryant, a resident of the building, was killed and her brother, Lenny Bryant, was injured. The fire was apparently started in retaliation for the fact that defendant's wife was having an affair with a resident at the building. The defendant, while being questioned by Officer Philip Mahony at the police precinct, admitted starting the fire."[FN1]

Petitioner completed his twenty-one years minimum and made his first appearance before the New York Parole Board (the Board). After a hearing, the Parole Board denied him release and set his next appearance as October 2006. The Parole Board denied petitioner's release, finding that: "Parole is denied for the following reasons: Given the violence and serious demeanor that you have demonstrated in the IO of murder 2nd, assault 2 and arson 2nd. The IO represents your only crimes of conviction. Your institutional records of programming and disciplinary have been reviewed and considered by this panel and determined that your criminal actions demonstrated in the IO poses an enormous risk to public safety should you re-offend a similar felony. This panel deemed your release as not being in the best interest of community living at this time." (Sic)

On September 2, 2005, petitioner commenced an action alleging that the Board's denial of his release was arbitrary and capricious, contrary to statute and based on misinformation regarding the crime.

Prior to filing an answer and by paper dated September 27, 2005 mailed September 29, 2005, respondent demanded a change of venue. Petitioner refused the demand to change venue. By motion filed October 19, 2005, the respondent moves for a change of venue. Respondent requests that if the court denies the change of venue then, the court should extend respondent's time to answer the petition

Respondent's Motion

Respondent moves for an order changing the place of trial in this proceeding and transferring the petition to either Sullivan County or Albany County.[FN2] CPLR 506 (b) provides that: "A proceeding against a body or officer shall be commenced in any county within the judicial district where the respondent [*3]made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceeding were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located." (Emphasis added)

Respondent argues that the decision being challenged was made at the Ottisville Correctional facility in Sullivan County, none of the proceedings or material events related to the challenged parole determination in this case took place in Kings County, nor is the principal office of respondent located in Kings County, but rather in Albany County. Accordingly, respondent argues that since the contested decision was made in Sullivan County, this proceeding is properly venued there. In the alternative, since the final determination was made in Albany County, where the Parole Board's principal office is located, Albany County is also an appropriate venue.

In opposition, petitioner contends that his trial, conviction and sentence all occurred in Kings County and thus the material events took place within the judicial district in which the proceeding was instituted. He also argues that the motion is untimely.

The above quoted language of CPLR 506 (b) authorizes the commencement of the proceeding in the county where the underlying events which gave rise to the official action complained of occurred. In this case the board's determination clearly indicated that it relied on the "the violence and serious demeanor that you have demonstrated in the IO of murder 2nd, assault 2 and arson 2nd." The "IO" occurred in Kings County. Thus a "material event" happened in Kings county.[FN3]

Accordingly, respondent's motion for change of venue is denied.

The court need not decide the timeliness of this motion since the motion for a change of venue is denied on the merits.

The respondent's request for an extension of time to answer the petition is granted. The respondent shall answer the petition within thirty days of service of the herein decision and order.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. [*4] Footnotes

Footnote 1: People v Key 151 AD2d 782 (1989).

Footnote 2: CPLR 506 (b), 510, and 511.

Footnote 3: see Weinstein v Dennison, 7 Misc 3d 1009A [2005]; Hawkins v Coughlin, 132 Misc 2d 45, 47 (1986), affd 132 AD2d 381(1987), affd 72 NY2d 158(1988), citing Matter of Moors v Craig, 205 App Div 897 (1923); Matter of Browne v New York State Bd. Of Parole, 10 NY2d 116 (1961).