Matter of Boudin v Travis

[*1] Matter of Boudin v Travis 2003 NY Slip Op 51741(U) Decided on April 29, 2003 Supreme Court, Albany County Benza, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 29, 2003
Supreme Court, Albany County

In the Matter of the Application of KATHY BOUDIN, 84-G-0171, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law & Rules of the State of New York

against

BRION D. TRAVIS, CHAIRMAN, BOARD OF PAROLE, Respondent.



8264-02



Leonard I. Weinglass, Esq.

Attorney for Petitioner

6 West 20th Street

New York, New York 10011

Eliot Spitzer, Attorney General

Office of the Attorney General

Attorney for Respondent

Roger W. Kinsey, Esq.

The Capitol

Albany, New York 12224

Louis C. Benza, J.

Petitioner, an inmate at Bedford Hills Correctional Facility, brings this special proceeding pursuant to CPLR article 78 seeking review of respondent's denial of her application for parole.

Petitioner was sentenced on her guilty plea and is serving concurrent sentences of 20 years to life for murder in the second degree, and 12½ years to 25 years for first-degree robbery (Affirmation of Roger W. Kinsey, Esq., exhibit "A"). At petitioner's sentencing, the sentencing court recommended "I see no reason in the world why petitioner should not be paroled at the expiration of the 20 years if the parole authorities are satisfied that's appropriate" (Verified Petition, exhibit "3", p 44). After a August 2001 parole hearing, the Parole Board denied petitioner's application for release (Verified Petition, exhibit "4", p37).

In denying petitioner's parole release, the Board stated:

After a full review of the record at interview, the Panel has determined that notwithstanding your [*2]positive response to the requirements of institutionalization, as documented by your disciplinary and program records, that due to the violent nature and circumstances of the instant offenses, your release at this time would be incompatible with the welfare of society and would serve to deprecate the seriousness of the criminal behavior herein so as to undermine respect for the law.

On administrative appeal, the Appeals Board denied all of petitioner's allegations and stated that review of the sentencing minutes was not required under Executive Law 259 (Verified Petition, exhibit "5").

In her application, petitioner asserts the Board's decision violated lawful procedure and was arbitrary and capricious. Specifically, she contends the Board abused its discretion by: failing to consider the explicit recommendation of the sentencing court and the District Attorney that petitioner be released after serving 20 years in prison; placing excessive weight upon the crimes for which petitioner was convicted; and the Commissioner conducting the hearing was a holdover and serving solely at the pleasure of the Governor, who in the past had publicly expressed opposition to petitioner's release.

Respondent counters that (1) petitioner has failed to demonstrate that respondent has violated any statutory mandate; (2) that the Parole Board specifically recognized petitioner's good conduct while incarcerated but nonetheless appropriately concluded that early release would deprecate the gravity of the instant offense; (3) that the Parole Board considered all the statutory factors necessary before making their determination; (4) and that it was proper for Parole Commissioner Platt to conduct petitioner's parole interview, and that the determination was not politically influenced.

Executive Law 259-i governs the procedures for the conduct of the work of the State's Board of Parole (see, id.). Initially, in reviewing a parole application, a Parole Board must consider (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services and any recommendation regarding deportation made by the commissioner of the department of correctional services pursuant to section one hundred forty-seven of the correction law; and (v) any statement made to the board by the crime victim or the victim's representative, where the crime victim is deceased or is mentally or physically incapacitated (Executive Law §259-i [2][c][A]).

Moreover, Section 259-i (2) (c) (A) further requires when, as here, the minimum period of imprisonment has not been determined by the Board of Parole pursuant to Executive Law § 259-i (1) (a), additional factors shall be considered. The use of the term "shall" indicates such review is mandatory, not permissive. These factors include, inter alia, the seriousness of the [*3]offense with due consideration to the type of sentence, length of sentence and recommendation of the sentencing court (see, Executive Law 259-i [1] [a]; [2] [c] [A]). Given that the Legislature has mandated that the sentencing court's recommendation be considered, the Board must adhere to the statutory requirements and review these recommendations.

Here, respondent, through its counsel, admits that in petitioner's application it did not consider petitioner's sentencing minutes containing the sentencing court's recommendation and, in fact, argues that a review of the sentencing was not required under the Executive Law. Such omission is not only in violation of Executive Law § 259-i (1) (a); (2) (c) (A), but also respondent's own Policy and Procedures Manual 8105.06 stating the importance of obtaining and reviewing sentencing minutes (Verified Petition, exhibit 6). While respondent argues that the Policy and Procedures Manual does not have the force of law because it is an internal guideline, this Manual at a minimum demonstrates that the Parole Board was aware of the requirements that sentencing minutes be reviewed.[FN1] In any event, regardless of the force of the Manual, under these circumstances, respondent is compelled by the Executive Law to consider the sentencing court's recommendation (Executive Law § 259-i [1] [a]; [2] [c] [A]; Matter of Edwards v Travis, __ AD2d __ [Apr. 7, 2003]). For this reason alone, petitioner's application for a new hearing must be granted inasmuch as said failure renders the denial of the parole application arbitrary and capricious.

In making this determination, the Court notes when parole is not granted, the inmate is entitled to a written determination stating the reasons for denying parole. "Such reasons shall be given in detail and not in conclusory terms" (Executive Law 259-i [2][a]). Here, the Board's generic one paragraph determination denying petitioner parole does not meet this requirement.

As a final matter, the Court must note that petitioner's contention that Commissioner Platt's holdover term violates New York law is unfounded. Under Executive Law §259-b(4), "the members of the state board of parole shall not hold any other public office". This is reflective of the Legislature's intent to hold Parole Board members to those rules applicable to Public Officers. Public Officers Law §5 provides that:

Every officer except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified (Public Officers Law §5).

While the functions of Parole Board members are deemed classically judicial in nature (see Tarter v State of New York, 68 NY2d 511, 518), it does not necessarily follow that the members [*4]themselves are judicial officers. Although neutrally-positioned government officials perform quasi-judicial functions, such officers do not attain the status of judicial officers (see, Arteaga v State of New York, 72 NY2d 212 [extending judicial immunity to correction officer presiding as Hearing Officer on Tier III hearing]; Tarter v State of New York, supra [Parol Board performs quasi-judicial function worthy of judicial immunity]). The fact that Parole Board members are not judicial officers follows particularly in light of Executive Law 259-i (b) (4) which codifies them as public officers. Thus, Commissioner Platt appropriately fell within the statutory holdover provision of Public Officer's Law §5 upon the expiration of her term. Moreover, petitioner's contentions that Commissioner Platt's status as a holdover creates a conflict of interest and that the decision of the Board was politically motivated without more, is unavailing. This argument lacks any evidentiary support from the record and, thus, is purely speculative.

In any case, having determined that the Board did not comply with the statute, petitioner is entitled to a new hearing. As such, petitioner's application is granted, respondent's decision is annulled and the matter is remanded to respondent for a de novo hearing, before a different panel, wherein the mandates of the requirements of the Executive Law are specifically addressed in a manner consistent with this Court's determination.

This memorandum constitutes the Judgment of this Court. All papers including this Judgment are returned to petitioner's attorney. The signing of this Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.



Albany, New York __________________________

April 29, 2003Hon. Louis C. Benza, JSC

Papers Considered 1.

Notice of Petition dated December 6, 2002 2. Verified Petition dated December 6, 2002; exhibits annexed 1-9; 3. Affirmation of Roger W. Kinsey dated March 6, 2003; exhibits A-I 4. Answer dated March 7, 2003 Footnotes

Footnote 1: Unquestionably, the Board was required by statute to adopt written guidelines in making parole decisions (see, Executive 259-c [4]). Guidelines not involving internal management of a department are to be filed with the Department of State and bind the agency or department (Executive Law § 102). The Manual at issue in this proceeding, however, was an internal guideline, which is not entitled to force of law (People ex rel. MacKelvey v. New York State Division of Parole, 138 AD2d 549).