Matter of Branch v New York State Bd. of Parole
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Matter of Branch v New York State Bd. of Parole 2012 NY Slip Op 32714(U) August 20, 2012 Supreme Court, Albany County Docket Number: 850-12 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 COWTY OF ALBANY In The Matter of STEVEN BRANCH, Petitioner, -against- NEW YORK STATE BOARD OF PAROLE, Resp01 1dent, 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 C o w Justice Presiding M # 01-12-ST3488 Index No. 850-12 I Appearances : Steven Branch Inmate No. 06-A- 1889 Petitioner, Pro Se Woodbourne Correctional Facility PO Box 1000 99 Prison Road Woodbourne, NY 12788-1000 Eric T. Schneideman Attorney General State ofNew York Attorney For Respondent The Capitol Albany, New York 12224 (Gregory J. Rodriguez, Assistant Attorney General of Counsel) DECISIONIORDEWJUDGMENT George ¬3. Ceresia, Jr., Justice The petitioner, an inmate at Woodbome Correctional Facility, commenced the instant CPLR Article 78 proceeding to review a determination of respondent dated April 5,201 1 [* 2] to deny petitioner discretionary release on parole. He is serving a term oftwo to four years for attempted assauIt in the second degree, arising out of a motor vehicle accident which occurred in May 2005, in which he drove the wrong way down a one way street, struck a motorcycie and seriously injuring the driver, and then fled the scene of the accident. He was on parole for a prior crime at the time of the accident, and the new sentence was imposed consecutively to the prior one. Among the arguments set forth in the petition, the petitioner alleges that the Parole Board failed to adhere to the requirements of Executive Law 3 259-i, and violated his right to due process. He aIso maintains that the Parole Board failed to comply with certain legislation enacted in 201 1 which amended the Executive Law with regard to parole release decisions. In his administrative appeal he alleges that the Parole Board failed to consider his therapeutic, educational and vocational programming, including the acquisition of a certificate of earned eligibility. He maintains that he took responsibility for his crime through his guilty plea; that there is no evidence that he is a danger to society; that he has made efforts to rehabiIitate himseIf; and hat he has a strong support network i n the community. The reasons for the respondent s determination to deny petitioner release on parole are set forth as foIIows: Denied 24 months, next appearance April 20 13. Not withstanding the EEC, after a review of the record and interview, the panel has determined that if released at this time, there is a reasonable probability that you would not live and remain at liberty without again violating the Iaw and your release would be incompatible with the welfare of society, This decision is based on the following factors: your instant offense attempted assault second degree in which yau drove it vehicle and struck a motorcydist causing injury and then fled and did so 2 [* 3] while on parole. Your history began & a juvenile in 1969, includes a YO robbery, four felonies, violence, prior prison and faiIure at community supervision. Note is made of your sentencing minutes, programming, disciplinary record and all other required factors. You cleady failed to benefit from prior efforts at rehabilitation. Parole is denied. As relevant here, the 201 1 legislation (seeL 201 1 ch 62, Part C, Subpart A, 5 38-b, et seq.) amended the Executive Law, as it relates to parole determinationsin two ways. First, Executive Law 5 259-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 [] (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 parole in determining which inmates may be released to parole supervision (L, 20 1I ch 62, Part C,Subpart A, 5 3 8-b). This amendment was made effective six months after its adoption on March 3 1,201 1, that is, on October I , 201 1 (see L 201 I, ch 62, Part C, Subpart A, 5 49-[fl). In the Second change, Executive 25% (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 2011 ch 62, Part C , Subpart A, 6 28-f-1). This amendment was effective immediately upon its adoption on March 3 I , 201 1 (see L 201 1 , ch 62, Part C , Subpart A, 5 4 9 , However, the Iatter amendment did not result in a substantive change in the criteria which the Parole R o a d should consider in rendering its decision, 3 [* 4] With regard to the issue of retroactivity of the 201 1 legislation, as noted, the parole determination here was made on January 25,201 1, well before the legislation was enacted, and well before the effective date of the amendment to Executive Law 259-c (4). Generally speaking, statutory amendments c L are presumed to have prospective application unless the Legislature s preference for retroactivity is explicitly stated or clearly indicated (Matter of Gleason v Michael Vee Ltd., 96 NY2d 117,122 [200 1 I, citing People v Oliver, 1 NY2d 1 52, 157). While remedial legislation often will be applied retroactively to carry out its beneficial purpose, this is not the case where the Legislature has made a specific pronouncement about retroactive effect (see Matter of Gleason v Michael Vee Ltd., supra, at 122). In this instance, as the Court observed in Matter of Hamilton v New York State Division of Parole (943 NYS2d 73 1, Platkin, Richard M.,Sup. Ct., Albany Co., 20 121, the State Legislature considered the question of the effectiveness of the 20 11 Amendments and determined that the new procedures contemplatedby the amendments to Executive Law 8 259-c (4) should not be given effect with respect to administrative proceedings conducted prior to October 1, 20 1 1, This Court agrees. Under such circumstances, there clearly was no Legislative intent that said amendments be applied retroactively to parole determinations rendered prior to October I, 20 11 (see id.; see also Matter of Tafari v Evans, 20 12 NY Slip Op 5 135 5U [Sup. Ct., Franklin Co., 20121) Parole Release decisions are discretionary and, if made pursuant to statutory requirements, not reviewable CMatter of De La Cruz v Travis, 10 AD3d 789 [3d Dept., 20041; Matter of Collado v New York State Division of Parole, 287 AD2d 921 [3d Pept., 200 1 J), Furthemore, m1y a showing of irrationality bordering on impropriety on the part 4 [* 5] of the Parole Board has been found to necessitatejudicial intervention (E Matter of SiImon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of RussO,v: New York State Bd, of Parole 50 NY2d 69,77 119801; see also Matter of Graziano v Evans, 90 AD3d 1367,1369 ? - [3d Dept., 201 11). In the absence of the above, there is no basis upon which to disturb the discretionary determination made by the Parole Board (see Matter of Perez v. New York State of Division of Parole, 294 AD2d 724 [3rd Dept., 20021). The Court finds that the Parole Board considered the relevant criteria in making its decision and its determination w s supported by the record. A review of the transcript of the a parole interview reveals that, i addition to the instant offense, attention w s paid to such n a factors as petitioner's possession of a certificate of earned eligibility, his institutional programming and disciplinary record, and his plans upon release, including residing with his brother in Queens and going back to his job as a sheet metal worker. The decision was sufficiently detailed to inform the petitioner of the reasons for the denial of parole and it satisfied the requirements of Executive Law $259-i (seeMatter of Siao-Pao, 1 1 NY3d 773 [2008]; Matter of Whitehead v, Russi, 20 1 AD2d 825 [3rd Dept., 19941; Matter of Green v. f 194 AD2d 477 [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 (see Matter ofMatos v New York State Board of Parole, 87 AD3d 1193 [3d Dept., 201 11; Matter of Dudley v Travis, 227 AD2d 863, [3rd Dept., 1996), as we11 as the inmate's criminal history (see Matter of Farid v Travis, 239 AD2d 629 13rd Dept., 19971; Matter of Cohen v Gonzalez, 254 AD2d 556 [3rd Dept., 19983). The Parole Board is not required to enumerate or give equal weight to each factor that it considered in determining 5 [* 6] the inmate s application, or to expressly discuss each one (E Matter of MacKenzie v Evans, supra; Matter of Matos v New York State Board of Parole, supra; Matter of Yomp v New YorkDivisionofParole, 74 AD3d 1681,1681-1682 [3rdDept., 20101; MatterofWisevNew York State Division of Parole, 54 AD3d 463 [3d Dept., 20081). Nor must the parole board recite the precise statutory language set forth in the first sentence of Executive Law 9 25% (2) (c) (A) (E Matler of Silver0 v Dennison, 28 AD3d 859 [3d Dept., 20061). In other words, [wlhere appropriate the Board may give considerableweight 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 nut incompatible with the welfare of society, and whether release will deprecate the seriousness of [the] crime a to undermine respect for [the] law (Matter of s Durio v New York State Division of Parole, 3 AD3d 816 [3rd Dept., 20041, quoting Executive Law $2594 [2] [c] [A], other citations omitted). It is well settled that receipt of a certificate of earned eligibility does not serve as a guarantee of release (Matter ofDorman vNew York State Board ofParole, 30 AD3d 880 [3rd Dept., 20061; Matter of Pearl v New York State Division of Parole, 25 AD3d 1058 [3 d Dept., 20061). Petitioner s claims that the determination to deny parole is tantamount to a resentencing, in violation of the double jeopardy clauses s prohibition against multiple punishments are conclusory and without merit (m Matter of Bockeno v New York State Parole Board, 227 AD2d 75 1 [3rd Dept., 19961;Matter of Crews v New York State Executive 6 [* 7] Department Board of Appeals Unit, 281 AD2d 672 [3rd Dept., 20013; 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 11; Matter ofCarter v Evans, 81 AD3d 1031,1031 [3d Dept., 201 13; Matter of VaIentino v Evans, 92 AD3d 1054 [3d Dept., 20 121). The fact that an inmate has served his or her minimum sentence does not confer upon the inmate a protected liberty interest in parole release (see Matter of Motti v Alexander, 54 AD3d I 1 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 court set the minimum 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., 20 I 11; Matter of Cody v Dennison, 33 AD2d 1141,1142 [3rdDept., 20061 Iv denied 8 NY3d 802 120071; Matter of Burress v Dennison, 37 AD3d 930 [3rdDept., 20071). With regard to petitioner's arguments concerning an alleged violation of his right to due process, the Court first observes that there is no inherent right to parole under the constitution of either the United States or the State of New York (seeGreenholtz v Inmates of the Nebraska Penal and Correctional Complex, 442 US 1, 7 [ 19797; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 73, supra). It has been repeatedly held that Executive Law 0 2594 does not create in any prisoner an entitlement to, or a legitimate expectation of, release; therefore, no constitutionallyprotected liberty interests are implicated by the Parole Board's exercise of its discretion to deny parole (see Bama v Travis, 239 F3d 169, 171 [2d Ck, 20011; Marvin v Goord, 255 F3d 40, 44 /2d Cir., 20011; Boothe v Hammock, 605 F2d 661,664 [2d Cir., 19791; Paunetto v I-Iammock, 5 16 F Supp 1367,13677 [* 8] 1368 [SD NY,198I]; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69,75-76, supra. Matter of Gamez v Dennison, 18 AD3d 1099 [3rd Dept., 20051; Matter of Lozada v New York State Div. of Parole, 36 AD3d 1046, 1046 [3rd Dept., 20071). The Court, accordingly, finds no due process violation. In addition, 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 AD2d 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 finds the decision of the Parole Board was not irrational, in violation of lawful procedure, affected by m error of law, irrational or arbitrary and capricious. The petition must therefore be dismissed. T h e 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 decisiodordedjudgment is returned to the attorney for the respondents. AI1 other papers are being delivered by the Court to the County Clerk for filing. The signing of this decisionlorderljuclgment and delivery of this decision/order/judgment does not constitute 8 [* 9] entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. ENTER August d 0 ,2012 Troy, New York Dated: i" George B. Ceresia, Jr. Supreme Court Justice Papers Considered: 1. 2. Order To Show Cause dated February 27, Petition, Supporting Papers and Exhibits Respondent's Answer dated April 26,2012, Supporting Papers and Exhibits 9
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