Matter of Wade v Dennison

[*1] Matter of Wade v Dennison 2006 NY Slip Op 52139(U) [13 Misc 3d 1236(A)] Decided on November 3, 2006 Supreme Court, Kings County Partnow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through December 14, 2006; it will not be published in the printed Official Reports.

Decided on November 3, 2006
Supreme Court, Kings County

In the Matter of the Application of Quincy Wade,, Petitioner,

against

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



11451/06



The petitioner is Pro-Se by:

Quincy Wade

Marcy Correctional Facility

P.O. Box 3600

Marcy, NY 13403

The respondent was represented by:

U.S. Attorney General's Office

120 Broadway

New York, NY 10271

By: A.A.G. Judy Prosper

Mark I. Partnow, J.

Upon the foregoing papers in this CPLR article 78 proceeding, the application by petitioner Quincy Wade for a judgment setting aside the determination of the New York State Division of Parole which rejected petitioner's request for parole is denied and the instant proceeding is dismissed and the cross motion by respondent for a change of venue pursuant to CPLR 510 and 511 is also denied.

In his verified petition, petitioner, who was convicted of murder and is presently incarcerated, alleges, among other things, that in July 2003 his request for parole release was denied on the basis that he had a less than stellar disciplinary record and difficulty in both a structured and unstructured environment. In June 2005, petitioner re-applied for parole consideration and his request was again denied, the panel finding that petitioner had a wanton disregard for human life and a refusal to accept responsibility for his violent actions. Petitioner asserts that the Parole Board has a policy of denying parole in any case, such as his, which involves a death and that such policy is "a breach of the obligation legislatively imposed upon it to render a qualitative judgment based upon a review of all the relevant factors." Petitioner criticizes the paucity of detail in the Parole Board's most recent written decision since it "provides little for review and offers no guidance to petitioner as to his future conduct." Since the Parole Board allegedly relied upon petitioner's prior conviction for attempted robbery and the violent circumstances of the crime for which he was convicted, petitioner maintains that his "hope for parole was doomed from the start" since "he cannot change his past." Petitioner faults the Parole Board for failing to consider his academic, vocational and educational accomplishments [*2]while in prison. Petitioner further contends that the Parole Board routinely denies parole to violent felons as part of a political agenda and that it failed to consider the explicit recommendations of the sentencing court that he be released after serving twenty years in prison.

In his answer, respondent, the Chair of the New York State Division of Parole, argues that the Parole Board may, in considering an application for parole, properly consider an inmate's criminal history and the seriousness of the offense committed. He points out that allegations that the Board has systematically denied parole to prisoners convicted of violent crimes have been dismissed by the courts in other cases. Respondent further notes that the sentencing judge did not make any recommendation to the Division of Parole and that parole release is not a remedy in an Article 78 proceeding ; rather, "at most the petitioner would be entitled to a de novo review."

In his cross motion, respondent seeks to change the venue of this proceeding to either Albany County (where the Parole Board has its principal office) or Oneida County (where the decision being challenged was made). Respondent asserts that Kings County, plaintiff's choice of venue, is improper.

In opposition to the cross motion, petitioner argues that Kings County is a proper venue since, pursuant to CPLR 506 (b), it is the county "where the material events took place."

An Article 78 proceeding can be commenced "in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained were originated, or where the material events otherwise took place, or where the principal office of the respondent is located" (CPLR 506 [b]). The location of the material events is the county in which occurred the underlying events that gave rise to the official action in dispute (see Brothers of Mercy Nursing and Rehab. Ctr. v DeBuono, 237 AD2d 907 [1997]). The "material event" upon which the Parole Board made its determination was the sentence imposed upon petitioner (see Browne v New York State Bd. of Parole, 25 Misc 2d 1050 [1960], affd. 12 AD2d 800 [1961], revd. on other grounds 10 NY2d 116 [1961]; Matter of Crimmins v Dennison, 7 Misc 3d 1009 (A) [2005]). Respondent cross-moves to change venue either to the county where the parole determination was made or the county where respondent's office is located. However, since Kings County was the situs of petitioner's crime and of his sentencing, venue is proper here. Therefore, the cross motion is denied.

It is a well settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency (see Aronsky v Board of Educ., Community School Dist. No. 22 of City of New York, 70 NY2d 997 [1990]; Matter of Parkmed Assocs. v New York State Tax Comm., 60 NY2d 935 [1983]). It is not the function of the court in an Article 78 proceeding to weigh the facts and merits de novo or to substitute its judgment for that of the body reviewed, but only to determine if the action sought to be [*3]reviewed can be supported on any reasonable basis (see Clancy-Cullen Storage Co., Inc. v Board of Elections in the City of New York, 98 AD2d 635, 636 [1983]).

Petitioner's arguments concerning the manner of the Division of Parole's

decision-making, including that it failed to apply the standard contained in Executive Law § 259 -i (2)(c), are not persuasive.[FN1] The Parole Board has the ultimate authority as to whether to release a convict (see Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]). The courts may not interfere unless there is no rational basis for the exercise of discretion or the action complained of is found to be "arbitrary and capricious" (Pell v Board of Ed., 34 NY2d 222, 231 [1974]). By statute, the Board is to consider several factors, including the inmate's institutional record and release plans and any statements of the crime victim (see Executive Law § 259 - I [2][ [c] [A]). Where, as here, the sentencing court set the minimum sentence of imprisonment, the Board is also to consider the seriousness of the offense and the inmate's prior criminal record, if any (see Matter of Garcia v New York State Div. of Parole, 239 AD2d 235, 238 [1997]). Although the statutory factors must be considered, it is within the sole discretion of the Board as to the weight to be accorded to each of the factors (see Matter of Klein v New York State Div. of Parole, 202 AD2d 319, 320 [1994]; Matter of McKee v New York State Bd. of Parole, 157 AD2d 144, 145 [1990]). Here, the Commissioners interviewed petitioner and questioned him about the circumstances of the murder for which he was convicted and an earlier conviction for attempted robbery involving a weapon. Petitioner was given the opportunity to explain his disciplinary history while in prison and his plans for employment and housing if released. In denying petitioner's request for parole, the Commissioners cited, among other things, the nature of the crime, petitioner's past gang-involvement (including "a gang-related infraction since [his] last panel appearance") and his refusal to accept responsibility for his violent actions. Petitioner does not make a convincing showing that their determination was not based upon a consideration of each of the factors enumerated in Executive Law § 259-i (2) (c) (see Matter of McLain v New York State Div. of Parole, 204 AD2d 456 [1994]). The Board is not required to expressly discuss each of the statutory factors in its determination (see Matter of King v New York State Div. of Parole, 83 NY2d 788, 791 [1994]).

Accordingly, the petition is, in all respects, denied and the proceeding herein is dismissed.

The foregoing constitutes the decision, order and judgment of this court.

E N T E R, [*4]

J. S. C.

Footnotes

Footnote 1: Executive Law § 259- i (2) (c) provides, in part, that a discretionary release on parole "shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering that, if such inmate is released, he will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for the law."