Matter of Platten v NYS Div. of Parole
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Matter of Platten v NYS Div. of Parole 2012 NY Slip Op 32713(U) September 4, 2012 Supreme Court, Albany County Docket Number: 849-12 Judge: George B. Ceresia Jr 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. [* 1] STATE OF NEW YORK SUPREME COURT C O W OF ALBANY In The Matter of JOHN PLAITEN, Petitioner, -againstNYS DIVISION OF PAROLE, Respondent, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RSI # 01-12-ST3579 Index No. 849-12 Appearances : John Platten Inmate Nu. 90-C-0145 Petitioner, Pro Se Livingston Correctional Facility P.O. Box 1991 Sonyea, NY 14556 Eric T, Scheideman Attorney General State of New York Attorney For Respondent The Capitol AZbany, New York 12224 (Brian J. O Donnell, Assistant Attorney General of Counsel) DECISIONIORDERIJCTDGMENT George B. Ceresia, Jr., Justice The petitioner, an inmate at Livingston Correctional Facility, commenced the instant CPLR Article 78 proceeding to review a determination of respondent dated July 20,20 Z 1to [* 2] deny petitioner discretionary refease on parole. He is serving a term of 20 years to life upon a conviction of the crime of second degree murder, The petitioner indicates that he is 51 years of age and has been incarcerated for almost 23 years, He points out that he has had only one disciplinary infraction during his incarceration; that he had outside clearance without supervision for three years; that he works as a paralegal assistant in the law library. He indicates that he has only prior misdemeanor conviction (for driving while intoxicated), and has appropriate release plans, which include guaranteed job offers. He has completed all programmning requirements. He acquired a bachelor s degree in science, and has a paralegal certificate from the University of Buffalo School of Law. In support of his release, he has submitted 70 letters from from correction officers and staff, and a petition with one hundred signatures fiom family and friends. The petitioner maintains that the ParoIe Board failed to consider whether there is a reasonable probability that if released, the petitioner will live and remain at liberty without violating the law. In the petitioner s view, the Parole Board failed to consider the relevant factors under Executive Law 2594, and the parole determination is irrational bordering on impropriety. The petitioner contends that the determination was based solely on the seriousness of the crime for which he is currently incarcerated, without consideration of other factors. He maintains that the Parole Board improperly resentenced him to an additional term of imprisonment, over and above that imposed by the sentencingjudge, He asserts that a review of the sentencing minutes m k s ae clear that the sentencing judge intended the petitioner to be released after he sewed his 20 TheJuly 20,20 I 1 appearance before the Parole Board was a court-ordered de novo parole interview relating back to a June 20 10 Parole determination which was annulled. 2 [* 3] year minimum. The petitioner also maintains that the Parole Board failed to comply with the 201 1 amendments to Executive Law $2594 and 259-c (see L 201 I ch 62, Part C , Subpart A, 5 38-b, et seq.) . The reasons for the respondent s determination to deny petitioner release on parole are set forth as folIows: Denied - Hold for 24 months, Next appearance date: 6/2012 After a personal interview, record review and due deliberation, this panel finds your release is incompatible with the public safety and welfare of the community and would so deprecate the serious nature of your crime as to undermine respect for the law, This decision is based on the folIowing factors: You appeared before this panel for the serious 1.0, of murder 2 d wherein you shot your child s mother thereby causing her death. This was a senseless and merciless offense with a total disregard for human life. You showed little remorse, Your criminal history reflects no prior felony convictions, However, it does not minimize the serious nature of your instant offense. The panel notes your positive programming, release plans, good disciplinary record and your letters of support and educational achievements, however, despite these accomplishments,when considering all relevant factors, discretionary release is not warranted. Parole Release decisions are discretionary and, if made pursuant to statutory requirements, not reviewable (Matter of De La Cruz v Travis, 10 AD3d 789 f3d Dept., 20041; Matter of Collado v New York State Division of Parole, 287 AD2d 921 [3d Dept., 200 I]). Furthermore, only a showing of irrationality bordering on impropriety on the part of the Parole Board has been found to necessitatejudicial intervention @ Matter of Silrnon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v. New York State Bd. of Parole, 50 NY2d 69,77 [1980]; see also Matter of Graziano v Evans, 90 AD3d 1367,1369 [3d Dept., 201 11). In the absence of the above, there is EO basis upon which to disturb the 3 [* 4] discretionary determination made by the Parole Board (see Matter of Perez v. New York State of Division of Parole, 294 AD2d 726 [3rd Dept., 20021). The Court finds that the Parole Board considered the relevant criteria in making its decision and its determination was supported by the record. A review of the transcript of the parole interview reveals that, in addition to the instant offense, attention was paid to such factors as petitioner s educational accompMunents, his almost perfect disciplinary record, his current employment in the prison law library as assistant paralegal, his outside clearance, and support h r n famiry and friends. He was given ample opportunity to make comments in support of his release. The decision was sufficiently detailed to inform the petitioner of the reasons for the denial ofparole and it satisfied the requirements of Executive Law $2594 &Matter of Siao-Pao, 11 NY3d 773 [20O8];Matter of Whitehead v. Russi, 201 AD2d 825 [3rd Dept., 19941; ~ e199 AD2d 677 [3rd Dept., 19931). It is proper and, in fact, required, that the Parole Board consider the seriousness of the inmate s crimes and their violent nature (seeMatter of Matos v New York State Board of Parole, 87 AD3d f 193 13d Dept., 201 11; Matter of Dudley v Travis, 227 AD2d 863, [3rd Dept., 1996), as well as the inmate s criminal history lsee Matter of Farid v Travis, 239 AD2d 629 [3rd Dept., 19971; Matter of Cohen v GonzaIez, 254 AD2d 556 [3rd Dept., 19981). The Parole Board is not required to enumerate or give equal weight to each factor that it considered in determining the inmate sapplication, or to expressly discuss each one (see Matter of MacKenzie v Evans, supra; Matter of Matos v New York State Board of Pa&, supra; Matter of Young v New York Division of Parole, 74 AD3d I68 1,168 1 - 1.682 [3rd Dept., 20101; Matter of Wise v New York State Division of Parole, 54 AD3d 463 [3rd 4 [* 5] Dept., 20081). Nor must the parole board recite the precise statutory language set forth in the first sentence of Executive Law 5 2594 (2) (c) (A) (see Matter of Silver0 v Dennison, 28 AD3d 859 [3rdDept.;2006]). In other words, [wlkere appropriate the Board may give considerable weight to, or place particular emphasis on, the circumstances of the crimes for which a petitioner is incarcerated, as well as a petitioner s criminal history, together with the other statutory factors, in determining whether the individual will live and remain at liberty without violating the law, whether his or her release is not incompatible with the welfare of society, and whether release will deprecate the seriousness of [the] crime as to undermine respect for [the] law (Matter of Durio v New York State Division of Parole, 3 AD3d 816 [3rd Dept., 20041, quoting Executive Law $259-i [2] [c] [A], other citations omitted). Petitioner s claims that the determination to deny parole is tantamount to a resentencing, are conclusory and without merit (s Matter of Boockeno v New York State Parole Board, 227 AD2d 75 1 [3d Dept., 19961; Matter of Crews v New York State Executive Department Board of Apeals Unit, 281 A132d 672 [3 d Dept., 2001J; Matter of Evans v Dennison, 13 Misc3d 1236A, [Sup.Ct., West. Co., 20061; Matter of Kalwasinski v Paterson, 80 AD3d 1065,1066 [3d Dept., 201 1J; Matter of Carter v Evans, 81 AD3d 1032,103 1 [3d Dept., 201 13; Matter of V a l e n t h v Evans, 92 AD3d 1054 [3d Dept., 20121). The fact that an inmate has served his or her minimum sentence does not confer upon the inmate a protected liberty interest in parole reIezie (s Matter of Motti v Alexander, 54 AD3d I1 14, 1I 15 [3d Dept., 20081). The Parole Board is vested with the discretion to determine whether release was appropriate notwithstanding the fact that the sentencing cowt set the minimum 5 [* 6] term of petitioner s sentence (see Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]; Matter of Gomez v New York State Division of Parole, 87 AD3d 1197 [3d Dept., 201 11; Matter of Cody v Dennison, 33 AD2d 1141,1142 [3rdDept., 20061 lv denied 8 NY3d 802 [2007]; Matter of Burress v Dennison, 37 AD3d 930 [3rdDept., 20071). The imposition of less than the maximum sentence by the trial judge does not constitute a favorable sentencing recommendation (E Duffv v New York State Division of Parole, 74 AD3d 965 [2d Dept., 20 101). As relevant here, the 201 1 amendments to the Executive Law (E L 20 1 1 ch 62, Part C, Subpart A, 9 38-b, et seq., supra) made two modifications with respect to how parole determinations are handled. First, Executive Law $ 259-c was revised to abolish the old guideline criteria, and establish a review process that would place greater emphasis on assessing the degree to which inmates have been rehabilitated, and the probability that they would be able to remain crime-free if released. Said section now recites: [tlhe state board of parole shall [J (4) establish written procedures for its use in making parole decisions as required by law. Such written procedures shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist members of the state board of paroIe in determining which h a t e s may be released to parole supervision (L 201 1 ch 62, Part C , Subpart A, 5 3 8-b). This amendment was made effective six months after its adoption on March 3 1,20 I 1, that is, on October 1,20 Z 1 (see L 201 I ch 62, Part C, Subpart A, 5 49-[fl). In the second change, Executive 2594 ( 2 )( c )was amended to incorporate into one section the eight factors which the Parole Board was to consider in making release determinations (see L 201 1 ch 62, 6 [* 7] Lastly, the Parole Board's decision to hold petitioner for the maximum period (24 months) is within the Board's discretion and was supported by the record (seeMatter of Tatta v State of New York Division of Parole, 290 AD28 907 [3rd Dept., 20021, Iv denied 98 NY2d 604). The Court has reviewed petitioner's remaining arguments and contentions and finds them to be without merit. The Court fmds the decision of the Parole Board was not irrational, in violation of lawful procedure, affected by an error of law, irrational or arbitrary and capricious. The petition must therefore be dismissed. The Court observes that certain records of a confidential nature relating to the petitioner were submitted to the Court as a part of the record. The Court, by separate order, is sealing all records submitted for i camera review. n Accordingly, it is ORDERED and ADJUDGED, that the petition be and hereby is dismissed. This shall constitute the decision, order and judgment of the Court. The original decisiodorderljudgmentis returned to the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decisio~orderljudgment delivery of this decisiodordedjudgment does not constitute and entry or filing under CPLR Rule 2220. Counsel is not relieved fiom the applicable provisions of that rule respecting filing, entry and notice of entry. ENTER Dated: September ,2012 Troy, New Yurk J Supreme Court Justice 8 [* 8] Papers Considered: 1. 2. 3. Order To Show Cause dated February 24,20 12, Petition, Supporting Papers and Exhibits Respondent s Answer dated April 27,ZO 12, Supporting Papers and Exhibits Petitioner sReply dated May 4,20 I2 9
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