Matter of Lungen v Dennison

[*1] Matter of Lungen v Dennison 2007 NY Slip Op 52152(U) [17 Misc 3d 1126(A)] Decided on October 13, 2007 Supreme Court, Sullivan County LaBuda, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2007
Supreme Court, Sullivan County

In the Matter of the Application of Stephen F. Lungen in His Capacity as the District Attorney of Sullivan County, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules

against

Robert J. Dennison, in His Capacity as Chairman of the New York State Division Of Parole, Respondent.



2622-07



Hon. Stephen F. Lungen

Sullivan County District Attorney

Sullivan County Courthouse

414 Broadway

Monticello, NY 12701

Petitioner

Attorney General for the State of New York

235 Main St.

Poughkeepsie, NY 12601

By Dewey Lee, AAG, of counsel

Attorney for Respondent

Tendy & Cantor

62 East Main Street

Wappingers Falls, NY 12590

By: William M. Tendy, Jr., Esq., of counsel

Attorney for Defendant Kera Peters

Frank J. LaBuda, J.

Petitioner seeks Article 78 relief vacating and reversing the July 16, 2005 determination [*2]by the New York State Division of Parole (Parole) granting presumptive release and discharging Defendant Kera Peters (Peters) from parole upon the grounds that said discharge violated New York State Executive Law §259-j and was arbitrary and capricious.

Respondent submits Verified Answer and Objections.

Defendant Peters submits affirmation in opposition.

Following submission herein this Court conducted a hearing which extended over a period of several months.

STATEMENT OF FACTS

Defendant Peters was indicted for grand larceny in the second degree on November 15, 2000. She entered a guilty plea to grand larceny in the second degree on March 7, 2001 and was sentenced on April 23, 2001 to a term of state prison of five to fifteen years and restitution of $866,000.00.

The Restitution Order (Order #1) was entered on August 23, 2001 and served upon Albion Correctional Facility. Monies towards restitution were taken out of Peter's prison wages.

After this Court denied Peters' request for remission of the restitution the Appellate Division, Third Department, pursuant to Peters' appeal, remitted the matter back to this Court for a restitution hearing.

This Court held a restitution hearing and issued a Restitution Order dated July 6, 2004 in the amount of $869,222.

The petitioner concedes that, although said July 6, 2004 Restitution Order was filed with the Clerk of the Court, the Sullivan County Probation Department and the Sullivan County District Attorney, it was not filed with the Department of Corrections.

Defendant Peters received Merit Release from prison and was placed on parole on July 16, 2004.

Defendant Peters was given presumptive release from parole supervision on July 16, 2005 without paying any further restitution.

ARGUMENT

Petitioner argues two points; 1. Defendant Peters presumptive release violates Executive Law §259-j(2); and

2. was arbitrary and capricious. [*3]

Petitioner concedes that the second Restitution Order dated

July 6, 2004 in the amount of $869,222.00 was filed with the Sullivan County Court Clerk, the Sullivan County probation Department and the Sullivan County District Attorney but was not filed with the New York State Department of Corrections.

However, given the large amount of Restitution Order #1 ($866,000.00)from which prison wages were deducted from the defendant until the Appellate Division sent the restitution issue back to the Sullivan County Court for a new hearing, the Division of Parole knew, or should have known that a new Restitution Order was forthcoming.

That prior to granting presumptive release by the Division of Parole a check with either the Sullivan County Court Clerk's Office, the Sullivan County Probation Department or the Office of the Sullivan County District Attorney would have produced a copy of Restitution Order #2 dated July 6, 2004 in the amount of $869,222.00 in the file of Defendant Peters in any of the above offices.

The respondent argues that there was testimony at the restitution hearing on the within petition that the Division of Parole checked with each above office and was told that no Restitution Order was in any file.

This Court finds that testimony not to be credible. Said testimony is bare on its face, does not recite the name any clerk spoken to in any of the offices and defies belief that each office file has a copy of said Restitution Order but not one office could locate said Restitution Order in its file.

THE LAW

Executive Law §259-j(2) states, in pertinent part,

"... No such merit termination shall be granted unless the division of parole is satisfied that termination is in the best interests of society, and that the parolee or releasee, otherwise

able to comply with an order of restitution..." (emphasis added.)

CONCLUSION

The Division of Parole knew, or should have known, that the original Restitution Order (Order #1) in the substantial amount of $866,000.00 was to be replaced by a new Restitution Order following the Appellate Division decision to remit the restitution matter back to the Sullivan County Court.

Executive Law §259-j(2) mandates the Division of Parolee to adequately check the restitution status of a potential presumptive releasee prior to granting such release. The Division of Parole knew that the original restitution order was in a substantial amount ($866,000.00) and because the restitution issue was returned to this Court by the Appellate Division a new restitution order was forthcoming. [*4]

This Court finds that the presumptive release of Defendant was in violation of Executive Law §259-j(2) and was arbitrary and capricious.

Based upon the above, it is

ORDERED, that the petition is granted, and it further

ORDERED, that the presumptive release and termination of the parole of Defendant Kera Peters is vacated and reversed, and it is further

ORDERED, that the Sullivan County District Attorney shall serve a certified copy of this Court's Restitution Order dated July 6, 2004 in the amount of $869,222.00 upon the Department of Corrections and the Division of Parole forthwith, and it is further

ORDERED, that the Division of Parole shall make a de novo determination of presumptive release and parole determination on Defendant Kara Peters after receiving this Court's Restitution Order dated July 6, 2004.

This shall constitute the Decision and Order of this Court.

DATED: October 13, 2007

Monticello, NY 12701

__________________________________

Hon. Frank J. LaBuda

Acting Supreme Court Judge