Matter of DiBenedetto v Evans
Annotate this CaseDecided on August 6, 2012
Supreme Court, Dutchess County
In the Matter of the Application of Philip DiBenedetto, Petitioner,
against
Andrea D. Evans, Chairman, NYS Div. Of Parole, Respondent.
2691/12
PHILIP DiBENEDETTO
Petitioner, Pro Se
Fishkill Correctional Facility
P.O. Box 1245
Beacon, New York 12508
BARRY KAUFMAN, ESQ., Assistant Attorney General
Office of the New York State Attorney General
Attorneys for Respondent
One Civic Center Plaza, Suite 401
Poughkeepsie, New York 12601
James D. Pagones, J.
This petition for a judgment pursuant to CPLR Article 78 setting aside the respondent's determination, dated September 13, 2011, or in the alternative, granting the petitioner a de novo Parole Board hearing; motion by the petitioner, styled as an Affidavit in Support of Order to Show Cause, for a stay pursuant to CPLR §7805, are resolved as follows.
Petition dismissed. Motion denied.
The petitioner is serving an aggregate indeterminate term of imprisonment of one and one-third to four years based upon his conviction for the crimes of: (1) Leaving the Scene of an Accident (VTL §600[2][a][c][ii], a class D felony), (2) Tampering with physical evidence (PL §215.40[2], a class E felony), and (3) Reckless endangerment in the second degree (PL §120.20, a class A misdemeanor).
The petitioner appeared before the respondent Parole Board for his initial hearing on [*2]September 13, 2011. Parole was denied for the reasons expressed on the record (Answer and Return, Ex. 4 at 8), and a twenty-four (24) month hold was imposed. The Board's decision was appealed. The Appeals Unit affirmed the underlying determination (Id, Ex. 9) on or about March 12, 2012. This proceeding and motion followed.
"A determination by the [Parole Board] made pursuant to Executive Law article 12-B shall be deemed a judicial function and shall not be reviewable if done in accordance with law' (Executive Law §259-i[5])." (Matter of Nankervis v. Dennison, 30 AD3d 521, 522 [2d Dept. 2006].) The petitioner bears the heavy burden of offering a "convincing demonstration" (Id at 522) that the determination was the result of "irrationality bordering on impropriety." (Matter of Silmon v. Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v. New York State Bd. of Parole, 50 NY2d 69, 77 [1980].) Until there is such a showing, judicial intervention is not warranted. (Matter of Silmon v. Travis, supra.) The Parole Board is presumed to have acted properly in accordance with the statutory requirements. (Matter of Nankervis v. Dennison, supra, at 522.)
The record indicates that in denying petitioner's application for parole release, the Parole Board considered all relevant factors, including the gravity of his current offense, his failure to take responsibility for fatally injuring the victim and his earned eligibility certificate. In spite of receiving such a certificate, the Parole Board made the specific finding that there was a reasonable probability that the petitioner could not remain at liberty without violating the law and that his release was not compatible with the welfare and safety of the community. (Matter of Cruz v. Travis, 273 AD2d 648, 649 [3d Dept. 2000].)
"[W]hile the relevant statutory factors must be considered, it is well-settled that the weight to be accorded to each of the factors lies solely within the discretion of the Parole Board. Moreover, the Board is not required to expressly discuss each of the guidelines in its determination." (Matter of Phillips v. Dennison, 41 AD3d 17, 21-22 [1st Dept. 2007], lv appl dismissed 9 NY3d 956 [2007], quoting Matter of Walker v. Travis, 252 AD2d 360, 362 [1st Dept. 1998].)
The petitioner's claim that the Parole Board failed to adhere to the directive set forth in Executive Law §259-c(4) is without merit. The cited statute requires the Board to promulgate procedures for consideration of an inmate's rehabilitation and risk assessment. This change to the law did not go into effect until September 30, 2011 (L 2011, ch 62, §38-b [Part C, Subpart A].) The petitioner's hearing occurred on September 13, 2011. In the absence of any indication of a contrary legislative intent, not present here, the 2011 amendment should be given prospective effect only. (Matter of Malavese, 133 AD2d 759, 761 [2d Dept. 1987].) Thus, the Parole Board properly applied the law in effect at the time of the petitioner's hearing.
This court concludes that "the challenged determination was rationally based upon appropriate considerations following a weighing of all applicable statutory standards and factors." (Matter of Phillips v. Dennison, supra, at 21 [1st Dept. 2007].) Judicial intervention is therefore not required.
The petitioner's motion for a stay pursuant to CPLR §7805 is denied as academic in light of the court's determination on the underlying petition.
The Attorney General's office is directed to retrieve Exhibits 2 and 3 (Parts II and III), which were submitted for in camera review only. [*3]
On this application, the Court considered the order to show cause supported by an affidavit in support of order to show cause, verified petition with five (5) exhibits, answer and return with nine (9) exhibits.
The foregoing constitutes the decision, order and judgment of the Court.
Dated:Poughkeepsie, New York
August 6, 2012
ENTER
HON. JAMES D. PAGONES, A.J.S.C.
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