Matter of Brown v Evans

Annotate this Case

Download PDF

Matter of Brown v Evans 2012 NY Slip Op 30695(U) March 9, 2012 Supreme Court, New York County Docket Number: 402471/2011 Judge: Lucy Billings Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 312212012 [* 1] SUPREME COURT OF THE STATE O F NEW YORK NEW YORK COUNTY PART Ltc Justice Index Number : 402471/2011 BROWN, NATHANIEL INDEX NO. VS. MOTION DATE EVANS, ANDREA SEQUENCE NUMBER : 001 MOTION SEQ. NO. ARTICLE 78 The following papers, numbered Ito 3 , were read on thls p A m n to/@? vw Notice of MotionlOrder to Show Cause - Affidavits - Exhlblts fWk9 p t W W k h r ' 5 INo(s)._I UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice d entry cannot be served based hereon. To obtain entry, counsel or authorized representative must appeat in ma the Judsment Clerk's Desk (Room t 1410). I. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTION IS: ................................................ @CASE NON-FINAL DISPOSITION DISPOSED 0GRANTED [. I DENIED E.1 SETTLE ORDER [I NOT POST DO r"rjRANTED IN PART nOTHER I 1 SUBMIT ORDER I ] FIDUCIARY APPOINTMENT 0REFERENCE [* 2] In the M a t t e r of t h e Application of NATHANIAL BROWN, Pet it ioncr-, Index No. 402471/2011 For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules - against DECISION AND ORDER - ANDREA EVANS, Chairwoman, NEW YORK STATE DEPARTMENT OF CORRECTIONS & COMMUNITY F o r Petitioner Kerry Elgarteri Esq. Legal Aid Society 199 Water Street, New York, NY 10038 For Respondent Michael Arcati, Assistant Attorney General 120 Broadway, New York, N y 10271 LUCY BILLINGS, J.S.C.: Petitioner, an inmate in the custody of the New York State Department of Corrections and Community Supervision (DOCCS) currently incarcerated at Orleans Correctional Facility, challenges respondent DOCCS Chairwoman,s time assessment of 24 months in additional incarceration after- petitioner pleaded guilty to a v i o l a t i o n of his parole conditions. 7 8 0 3 ( 3 ) and C.P.L.R. § (4). Respondent nioves to dismiss the petition OII the grounds that it fails to state a claim that r e s p o n d e r i t ' s determination violated due process or Executive Law brown. 13 8 1 § 259- [* 3] i ( 3 ) (f) (x) or was arbitrary, without a rational basis, or unsupported by substantial evidence. 7804(d). C.P.L.R. 5 5 3211(a), For the reasons explained below, the court denies respondent s motion to dismiss the petition, grants the petition to t h e e x t e n t of remanding the proceeding f o r speedy consideration by the New York State Board of Parole of petitioner s re-release on parole, and otherwise denies the petition. C . P . L . R .§ § 7 8 0 3 ( 3 ) , 7 8 0 6 . See N.Y. Exec. Law § 259- i(3) (f) (x). I. UNDISPUTED BACKGROUND In 1996, petitioner was convicted of Rape in the First Degree and sentenced to an indeterminate term of 11 to 22.years. N.Y. Penal Law § 130.35. On August 11, 2010, he was released to parole supervision. On October 14, 2010, DOCCS declared him delinquent arid charged him w i t h multiple violations of his parole conditions. At petitioner s Final Parole Revocatiori Hearing January 25, 2011, before an Administrative Law Judge ( A L J ) , petitioner pleaded guilty to one of the charges, entering the New York City Transit System without paying t h e fare, and admitted to being intoxicated when he committed that misconduct. He entered that plea on the understanding that the ALJ would recommcrid to the Board of Parole that a time assessment of 12 months be imposed, with the opportunity to attend an alternative substance abuse program for 97 d a y s . In a Parole Revocation Decision Notice dated January 25, b r o w n . 138 2 [* 4] 2011, t-heALJ found, based on petitioner's plea, that petitioner entered the Transit System without paying the fare arid was The ALJ further fulfilled the plea intoxicated when he did so. agreement by recommending to the Board of Parole that 12 months in additional incarceration be imposed, with the opportunity to attend an alternative substance abuse program for 97 days, and that, upon successfully completing the program, petitioner would be eligible for re-release to parole supervision sooner than in 12 months, N.Y. Exec. Law 259-i(3) (f) (x). The ALJ based the § finding of a p a r o l e violation on the admitted verified facts and the time assessment of 12 months with the alternative program on a review of petitioner's behavior and mitigating circumstances. See Morrissey v. Brewer, 408 U.S. 471, 484 (1972); Mayfield v . Evans, - A.D.3d -, 938 N.Y.S.2d 290, 298 (1st Dep't 2012) , Nevertheless, in a Parole Revocation Decision Notice addendum dated January 31, 2011, respondent ordered that a time assessment of 24 months be imposed before petitioner would be eligible for re-release to parole supervision. 11. EXECUTIVE L A W 5 259-i(3) (f)(x) New York Executive Law § 259-i(3) (f)(ii) provides that a "revocation hearing shall be conducted by a presiding officcr who m a y be a member [of] o r a hearing officer designated" by the Board of Parole. Executive Law § 259-i(3) (f)(x) provides that, if that "presiding officer is satisfied that there is a preponderance of evidence that the alleged violator violated one o r more conditions of release in an important respect, he or she brown. 138 3 [* 5] Regarding a parolee whom the presiding officer shall so find. has found violated the conditions of release, § 259-i(3) ( f ) (x) authorizes the presiding officer to order one of three (A) restoration to parole supervision; (B) alternatives: placement i n a parole transition facility up t o 1.80 days, followed by restoration to p a r o l e supervision, or (C) reincarcerat ion. When ordering reincarceration, t-he presiding officer is to "fix a date for consideration by the board for rerelease on . . - parole." N.Y. Exec. Law § 253-i(3) ( f ) (x) (emphasis a d d e d ) . This "consideration by t h e board for re-release," i . of d, course "refers to the future parole proceeding at the end of the term of time assessed, 'I "after-the time assessment has elapsed, 'I not to t-he time assessment itself. ~ , 938 N.Y.S.2d at 237. Mayfield v. Evans, A.D.3d ~ The time assessment determlines the date by which the Board of Parole next will consider a parole violator for re-release on parole. 9 N.Y.C.R.R. § 8002.6(a); Sure v. Taylor, 572 F. Supp. 2d 325, 330 n.3 (S.D.N.Y. 2008). The Board's consideration of a former parole violator for re-release also follows a required personal interview. 9 N.Y.C.R.R. § 8002.6 (d)(2)(iii). Although Executive Law S 259-i(3) (f)(x) gives the presiding officer three options from which he "may" choose, the statute does not allow the officer to choose any other option. The enumcraLed list must be construed as intentionally excluding any options not listed. brown. 13 8 N.Y. Statutes 4 § 240; Town of Riverhead v. [* 6] New York State Bd. of Real Prop. Servs., 5 N.Y.3d 36, 42-43 (2005); bJslker v. Town of IIempstead, 84 N.Y.2d 360, 3 6 7 (1994); Locario v . State, 3 0 A.D.3d 547, 548 (1st Dep't 2001.);New York City Council v. City of New York, 4 A.D.3d 8 5 , 96 (1st Dep't The presiding officer 'Imay" not choose an unlisted option 2004). such as a non-final decision imposing a time assessment, subject to a Board of Parole member's review and final decision fixing the time assessment. Mayfield v. Evans, A.D.3d -, ~ 938 N.Y.S.2d at 297. Thus, unless the Board of P a r o l e designates one of its members as the presiding officer who conducts the hearing, N.Y. Exec, Law § 259-i(3) (f) (ii), Executive Law § 259-i(3)(f)(x) does not authorize a Board member to find a violation of release conditions, to order reincarceration, or to fix the date when the reincarcerated paro1.e violator may be considered again by the board for re-release. At that point, of course, the Board members will determine when, if ever, t h e parole violator will be re-released before expiration of his sentence. Evans , - Mayfield v. A.D.3d -, 938 N.Y.S.2d at 297. Executive Law 5 259-i(3) (f)(x) does authorize t h e Board of Parole's intervention in one other instance. "For the violatos- serving an indeterminate sentence w h o h a s been found by t h e department to have committed a serious disciplinary infraction while incarcerated, the department shall refer the violator to the board for consideration for re-release to community supervision. b r o w n . 1 38 Respondent does not dispute that peti,tiorierdid 5 [* 7] not fall in this category. While he was a violator serving an indeterminate sentence, DOCCS and the ALJ found that he had "violated one or more conditions of release," not that he had l'cornmitteda serious disciplinary infraction while incarcerated." N.Y. Exec. Law 5 259-1(3) (f) (x). In the latter instance: "The Board s h a l l retain t h e authority to suspend the date fixed for re-release" by t h e presiding officer at the hearing. Notably, in that instance: IIThe board shall . . I. d require a personal interview between a panel of members of t h e board and the violator." Having designated the one instance when the Board of Parole may suspend a date fixed f o r re-release, specifically when the violator "committed a serious disciplinary infraction while incarcerated, Executive Law § 259-i (3) (f)(x)nowhere authorizes the Board or a member to adjust the date fixed by the presiding officer when a reincarcerated parole violator is to be considered for re-release. Yet respondent took precisely that action when, without a personal interview of petitioner, she extended that 12 months in additional incarceration and the alternative program of less duration to a time assessment of 24 months with no alternative. 111. 9 N.Y.C.R.R. 5 8005 - 2 0(c)(6) Respondent took her action pursuant to DOCCS regulations, 3 N.Y.C.R.R. § 8005.20(~)(6).This provision first recognizes that, under Executive Llaw § 259-i(3) ( f ) (x): A d e c i s i o n within these guidelines may be made by the presiding officer as a final and binding decision for all brown. 138 6 [* 8] categories of violators, other than those serving sentences f o r felony offenses under article 125, 130, 135 or 263 or section 255,25 thereof. The excepted categories of offenses include homicide, kidnapping, and sex crimes, which comprise Rape in the First Degree of which petitioner was convicted. N.Y. P e n a l Law violators convicted of these offenses, § § 130.35. For 8 0 0 5 . 2 0 ( c )(6) fails to recognize t h a t , under the governing statute, "a hearing officer who is not a Parole Board member may 'fix' time assessments without Board approval, regardless of the underlying conviction." MayEield v. Evans, A . 1 3 . 3 d -, 938 N.Y.S.2d a t 296. ~ Instead, the regulation requires that: All decisions w i t h i n these guidelines regarding alleged or adjudicated violators serving sentences for felony offenses under article 125, 1 3 0 , 135 or 263 or section 255.25 thereof must be reviewed by a member or members of the Board of Parole and shall be decided as follows: (i) a single member of the board shall make the final decision that imposes a time assessment. 9 N.Y.C.R.R. § 8005.20(c) ( 6 ) . The regulation thus prescribes precisely what Executive Law § 2 5 9 - i ( 3 ) (f) (x) proscribes: that a decision by the presiding officer who conducts the hearing imposing a time assessment is a non-final, non-binding decision subject to a Board of Parole member's review and final decision fixing the time assessment A.D.3d -, 9 3 8 N.Y.S.2d at Mayfield v. Evans, 297. The statute, in contrast, does not subject the presiding officer's time assessment regarding violators convicted of any category of of ¬ense to a Board of Parole member's a p p r o v a l . Evan5 d l A.D.3d I , 938 N.Y.S.2d at 297. I brown.138 7 Mayfield v. [* 9] IV. DISPOSITION Here, the record demonstrates that petitioner was afforded a hearing that assured (1) a finding of a parole violation by the presiding ALJ "based on verified facts" and (2) t2he exercise of discretion by the ALJ, in fixing the period of 12 months before petitioner was to be considered for re-release on parole, 'linformed by an accurate knowledge of t h e parolee's behavior." Morrissey v . Brewer, 408 U.S. at 484; Mayfield v . Evans, A.D.3d , 938 N.Y.S.2d at 298. Petitioner was afforded the - opportunity to be heard, to show that he did not commit. the multiple violations of his parole conditions with which he was charged, and in fact succeeded in convincing both DOCCS and the ALJ that he had committed only one such violation. Petitioner does not contend otherwise. N o r does he claim that he was denied an opportunity to show circumstances in mitigation such that the violation did not warrant revocation of his parole or, if it did, warranted a minimal time assessment. 9 N.Y.C.R.R.§ 8005.19(b); Morrissey v. Brewer, 408 U.S. at 488; Mayfield v . Evans, - A.D.3d -, 938 N.Y.S.2d at 298; DeFina v. New York St-ate Div. of Parole, 27 Misc. 3d 170, 179-80 ( S u p . Ct. Bronx Co. 2009). See For t h e People Theatres of N.Y. v . City of New York, 84 A.D.3d 48, 63 (1st Dep't 2011). Petitioner's claims pertain only to respondent's usurpation of the presiding officer's statutory authority. Mayfield v. Evans, - A.D.3d -, 938 N.Y.S.2d at 297. In fact, after hearing from both parties, reviewing the record, weighing the relevant information, and considering the brown. 138 8 [* 10] mitigating evidence, the ALJ detailed, with repeated emphases, the reasons for imposing a time assessment of 12 months and providing petitioner an opportunity to complete an alternative substance abuse program to qualify him for re-release sooner. His criminal history is minimal. There are no criminal or violent acts since 1995. This j . 3 his fir-st parole violation. He is now violated for a Theft of Services conviction (Ilfarebeat") There are no absconding charges. . Although his underlying crime is horrendous, I believe that such behavior was an aberration of 15 years ago and will not be repeated. Moreover, parolee needs drug rehab (see special conditions) and admits to an alcohol problem. V , Pet, Ex, 8, at 3. This analysis demonstrates that petitioner presented his position to a hearing officer who was fully cognizant of a l l the evidence presented, w a s capable of considering any mitigating factors in petitioner's favor, and articulated t h e reasons justifying the finding a of parole violation and the ALJ's time assessment and special conditions. Morrissey v. B r e w e r , 408 U.S. a t 488-89; Matter- of Edwin L., 88 A.D.3d -, 938 N.Y.2d 593, G O 5 (1996); Mayfield v . Evans, N.Y.S.2d at 299; People ex rel. Hacker v. New York State Div. of Parole, 228 A.D.2d 849, 850 (3d Dep't 1996). W. - 1 See People v. David 95 N.Y.2d 130, 139-40 (2000); For the P e o p l e Theatres of N.Y. v. Cit.y of New York, 84 A.D.3d at 63. In all these significant respects, petitioner received a t i m e assessment hearing comparable to the hearing afforded alleged and adjudicated parole violators convicted of offenses other than homicide, kidnapping, or sex crimes, to which he was entitled. i(3) (f) (x) Mayfield v. Evans, - A.D.3d ; N.Y. Exec. Law § , 938 N.Y.S.2d at 300. - Again, petitioner nowhere contends that the hearing he b r o w n . 13 8 9 259- [* 11] received before the ALJ in any way denied petitioner his constitutional rights to due process or his statutory rights under t h e ExecuLive L a w . t,he ALJ' s decision based I I e claims only that respondent treated 011 that hearing a:; non-f inal arid n o w binding , disregarded that. decision , and substituted another decision on completely different grounds, wihtout any opportunity for petitioner to show that those grounds were unfounded and thus respondent' Y decision w a s irrational. See, e.q., ADC C o n L r - . Constr. Corp. v. New Y o r k City Dept. of Desiqn & & Constr., 25 A.D.3d 488, 489 (1st Dep't 2006); Aurinqer v. Department of B l d q s . of City of N.Y., 24 A.D.3d 162, 163 (1st Dep't 2005); Poster v. Strouqh, 299 A.D.2d 127, 142-43 (2d Dep't 2002). Consequently, the court perceives no need f o r or benefit to be gained by remanding this proceeding to respondent f o r a new time assessment hearing where petitioner is afforded another "opportunity to address the ultimate decision-maker as to the appropriate time assessment in a manner consistent with the Executive Law as well as the state and federal Constitutions." Mayfield v . Evans, - A.D.3d -, 938 N.Y.S.2d at 300. petitioner i n Mayfield v. Evans, - A.D.3d , Unlike t h e 938 N.Y.S.2d at 293, the ALJ here considered and articulated all the mitigating factors in petitioner's favor and f u l l y justified the ALJ's disposition. Since petitioner already has served more that the ALJ's time assessment of 12 months and h a s not been considered for rc-release on p a r o l e by the Board of P a r o l e , a new time asssessment would delay his consideration for rc-release even brown.138 10 [* 12] longer. V. CONCLUSION For the foregoing reasons, the court denies respondent s motion to dismiss the petition and grants the petition to the following extent. The court vacates respondent s time assessment of 24 months and remands t h e proceeding to respondent (I) to impose a time assessment of 12 months from October 18, 2010, from which the assessment of 24 months originally r a n , and (2) to assure the New York State Board of Parole s immediate consideration of petitioner for re-release on p a r o l e . Because the court does not disturb the principal determination that petitioner violated the conditions of his parole, warranting a time assessment, and no party indicates any incompleteness in respondent s administrative record already presented to support i t s motion, the court also perceives no purpose in proceeding further in this forum with an answer to the petition. C.P.L.R. § § 409(b), 7804(f), 7806; Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educational Servs. of Nassau County, 6 3 N.Y.2d 100, 102-103 (1984); Camacho v. Kelly, 57 A.D.3d 297, 299 (1st Dep t 2 0 0 8 ) . If any party seeks to show such a purpose, that party may move, by an order to show cause, to restore this proceeding. Otherwise this decision constitutes t-he court s judgment granting the petition to the extent set forth, denying the remainder- of the petit-ion,and d i s m i - a a i n g the brown.138 11 [* 13] proceeding. i ( 3 )(f) DATED: C.P.L.R. § § 7 8 0 3 ( 3 ) , 7806; N . Y . Exec. Law § 259- (x). March 9 , 2012 LUCY BILLINGS , J .S . C. LUCY BlkhlNGS J.S.C. UNFILED JUDGMENT This judgment has not been entered by the County Clerk and notice ofentry cannot be served based hereon. To W i n entry, counsel or aulhorired reprmntative must appear in at the Judgment clerk's Des& (Room I41Bb brown. 13 8 12

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.