Moore v Evans

[*1] Moore v Evans 2010 NY Slip Op 50977(U) [27 Misc 3d 1230(A)] Decided on May 24, 2010 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through July 22, 2010; it will not be published in the printed Official Reports.

Decided on May 24, 2010
Supreme Court, New York County

Stanley Moore, Petitioner,

against

Andrea W. Evans, Chairwoman, New York State Division of Parole, Respondent.



100479-2010

Carol Robinson Edmead, J.

In this Article 78 proceeding against respondent Andrea W. Evans, Chairwoman, New York State Division of Parole ("respondent"), petitioner Stanley Moore ("petitioner"), who is currently on parole, seeks an order (1) declaring the respondent's implied denial of the petitioner's September 14, 2009 request to correct the declaration of delinquency stemming from the petitioner's December 2006 parole revocation decision null and void;[FN1] (2) declaring that the respondent's implied denial of petitioner's September 14, 2009 request to correct the consequential effects of the September 1983 parole revocation decision null and void; (3) declaring that respondent's action of leaving its resulting decision intact which revoked the petitioner's September 1983 parole, absent a valid parole violation, null and void; (4) declaring respondent's application of ex post facto law to petitioner's maximum parole date to be null and void; (5) directing respondent to recalculate the petitioner's 1975 and 1983 sentences using the legally mandated aggregation method.

Factual Background

In 1975, petitioner was sentenced to concurrent prison terms of 5 to 15 years for his conviction of rape and burglary. Petitioner was then paroled in 1980.

While released on parole, petitioner was charged with violating the terms of his parole [*2]following his arrest and conviction for burglary and robbery.[FN2] He was subsequently sentenced in 1983 to 12 1/2 to 25 years for those crimes. His parole was also revoked after a hearing in September 1983. On October 31, 2001, petitioner administratively appealed the 1983 parole revocation, but this request was denied by respondent. Petitioner also requested respondent to expunge certain allegedly misleading and inaccurate information from his parole file, which respondent denied. In December 2001, petitioner commenced an Article 78 proceeding challenging these two determinations. In April 2002, the Supreme Court (Kane, J.) dismissed the petition. Thereafter, petitioner moved for reconsideration of Supreme Court's dismissal of that part of his petition seeking expungement. Supreme Court denied the motion and petitioner appealed. The Appellate Division affirmed the Supreme Court's dismissal of the petition.

Petitioner contends that as a result of the September 1983 parole violation charge, petitioner was declared delinquent as of May 25, 1982; thus, his 1975 and 1983 sentences were aggregated: his original conditional release date of February 11, 1999 was extended to June 16, 2004, and his original maximum expiration date of June 11, 2007 was increased to March 18, 2015.

While on parole in 2006, petitioner was charged with two parole violations (petitioner was instructed to have "no contact with his girlfriend or her children") and was found guilty of both violations after a final parole hearing in December 2006. Petitioner was ultimately charged with violating a condition of his parole based on telephone calls and an alleged appearance at his girlfriend's apartment. His delinquency date was established as July 3, 2006 (which was modified due to an Appellate Division decision dismissing the charge regarding petitioner's telephone calls; the Appellate Division confirmed the second charge regarding petitioner's visit to his girlfriend's apartment).

In 2007, petitioner sought administrative remedies by asking respondent to review his parole file and correct any documents, and when he received no response, commenced an Article 78 proceeding. In response, the Division of Parole expunged the petitioner's parole files of the erroneous information. The Court dismissed the petition as moot.

As a result of petitioner's October 27, 2008 letter and a November 18, 2008 telephone call between petitioner and Terrence X. Tracy, Counsel to the Division of Parole ("Counsel for the Parole Division") regarding "the possibility of having [petitioner's] September 14, 1983 revocation of parole set aside . . ." (see letter dated November 21, 2008 to petitioner), said Counsel reviewed and assessed petitioner's September 1983 parole revocation. By such letter dated November 21, 2008, Counsel for the Parole Division confirmed that "There is no dispute that Charge No.2 of the Violation of Release Report generated in connection with your [*3]September 1983 violation of parole erroneously described your role in the events of May 25, 1982; this is what prompted . . . the attendant expungement of information from your case records..." (See Exhibit [F]). Counsel for the Parole Division continued: However, it is equally undisputed that Charge #2 was not sustained upon the erroneous description of your behavior on Ma[y] 25, 1982, but instead,was sustained as a result of the Division's introduction of the certificate of conviction under Bronx County Indictment #2377-1982 that arose out of the events of May 25, 1982, the same events that were the subject of Charge #2

In light of the foregoing, the independent and credible evidence introduced at your final revocation hearing in September 1983 with respect to Charge #2 of the subject Violation of Release Report coupled with your statement, supported, and continues to support, the Parole Board's decision to revoke your release status. Accordingly, the vacature of that decision which you have requested by your October 27, 2008 submission is denied.

Petitioner contends that Counsel for the Parole Division left intact the parole revocation decision based on the petitioner's then certificate of conviction. Petitioner argues that under the circumstances of this case, respondent is "illegally holding his parole expiration date beyond his original June 11, 2007 maximum expiration date, where, despite having expunge[d] Charge #2 of his parole violation from 1983, the only sustained charge of the 1983 and there being no other sustained violation, the September 14, 1983 declaration of delinquency must be recalculated, and therefore, the Respondent has a continuous nondiscretionary ministerial duty to recalculate the petitioner's 1975 and 1983 sentences using the correct' aggregation method set forth and mandated by the Court of Appeals." Although Counsel for the Parole Division found that Charge #2 had been expunged, he nevertheless left intact the parole revocation decision because of the certificate of conviction. (Id.) Clearly this is a miscarriage of justice. Therefore, argues petitioner, the actions of respondent are clearly arbitrary and capricious and a violation of New York law because even though that petitioner's parole violation charge was expunged, the impact of the expungement is rendered ineffective because of the erroneous introduction of the certificate of conviction. Further, the submission of the certificate of conviction without written notification, which is required by due process, requires that the violation based on the submission of the certificate of conviction be vacated. It is clear that the petitioner was not given written notice of the claimed violation of parole, which due process requires. Nowhere in the 1983 violation of release report, or in any supplemental notice is there any indication or reference to the "new" conviction. The consequences of this erroneous decision continue to negatively impact the petitioner's original 2007 maximum expiration date because the maximum parole date was extended because of a violation of the submission of the certificate of conviction, when the petitioner was not given written notice of said charge. This is a violation of the law and as such must be remedied by this court.

Petitioner further argues that to leave intact the parole revocation decision based on [*4]petitioner's conviction is in effect and substance illegally applying an ex posto facto law to the petitioner. Despite a conviction of a crime while on parole, the law in 1983 was clear, that "revocation is not automatic and rests in the discretion of the Parole Board." Since Charge #2 of the 1983 violation of release report has been expunged from the petitioner's parole files, and there being no other sustained violation charge in connection with his alleged 1983 violation of parole, the Division should properly recalculate the petitioner's 1975 and 1983 sentences using the "correct" aggregation method set forth and mandated by the Court of Appeals. Namely, the petitioner's potential time under custody could not be increased by the sentence time owed on his 1975 sentence. Where, as here, the underlying factual charge has been expunged; and under New York law, the absent of a valid sustained violation charge, the delinquency is cancelled pursuant to NY Penal Law § 70.40[3][a], and the interruption of the sentence occasioned by a delinquency shall not apply in accordance with NY Executive Law § 259-1 [3][h]). Petitioner is thus to serve his 1983 sentence and then serve his parole supervision time owed on his 1975 sentence.

Petitioner requests that the respondent's implied denial of the September 14, 2009 written request to perform a nondiscretionary ministerial duty to fully correct the consequential effects of the September 1983 parole revocation decision, the underlying factual charge which has (now) been determined to be "erroneous" and "expunged" from the petitioner's parole file, but nonetheless continuous to negatively impact his original 2007 maximum expiration date as argued herein, is arbitrary and capricious; and thus, violates due process and respondent's own regulations; that the respondent's expungement of Charge #2 the only sustained charge of the 1983 violation of release report, but yet leaving intact the resulting decision, revoking the petitioner's parole as argued herein, is arbitrary and capricious; and thus, violates due process and respondent's own regulations; that the respondent's implied denial of the September 14, 2009 written request to perform a nondiscretionary ministerial duty to recalculate the petitioner's 1975 and 1983 sentences using the "correct" aggregation method set forth and mandated by the Court of Appeals, is arbitrary and capricious, and thus, violates due process and respondent's own regulations; that the respondent's holding the petitioner beyond his original 2007 maximum expiration date despite having expunge[d] the underlying factual charge that led to his September 1983 parole revocation as argued herein, is arbitrary and capricious, and thus violates due process and respondent's own regulations; that the respondent's failure to cancel the petitioner's 1983 declaration of delinquency absence a valid sustained parole violation charge, is arbitrary and capricious, and thus, violates due process and respondent's own regulations; that the respondent's unlawful appliance of ex post facto law to the petitioner, is arbitrary and capricious, and thus, violates due process and respondent's own regulations.

Essentially, petitioner requests that this Court issue an order eliminating his 1983 parole revocation from his record.

In response, respondent cross moves to change the venue of this proceeding to Albany County pursuant to CPLR §§ 506(b), 510, and 511 upon the ground that New York County is not the proper venue for this proceeding. On March 15 2010, respondent served a Demand for Change of Venue on petitioner to change the place of trial in the instant proceeding to the County of Albany; the Demand was filed with the Clerk of this Court on March 29, 2010. Respondent contends that the action complained of by petitioner, is respondent's failure to respond to [*5]petitioner's September 14, 2009 letter to respondent's office in Albany, New York. In addition, the apparent impetus for the September 14, 2009 letter, is correspondence from Counsel for the Parole Division, which also originated from Albany County. Moreover, the September 14, 2009 letter also cites as its justification an affidavit of the Division's Assistant Counsel Eliot A. Mcintosh, also originating from Albany County that was submitted in litigation venued in Albany County. CPLR § 506(b) states that an Article 78 proceeding shall be commenced "in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place, or where the principal office of the respondent is located." It is clear that proper venue does not lie in New York County because none of the proceedings or material events relevant to the issues complained of took place there. Accordingly, proper venue for this proceeding is Albany County where respondent failed to take the alleged remedial actions requested by petitioner.

Respondent also argues that petitioner's challenge to the 1983 revocation of his parole is time-barred. The instant petition on its face purports only to challenge respondent's failure to respond to petitioner's request for remedial relief in September 2009. The petition's true aim, however, is to challenge the Board of Parole's revocation of petitioner's parole back in 1983. Such a challenge is untimely, since this Article 78 proceeding is subject to a strict four month statute of limitations set forth in CPLR § 217(1). An Article 78 claim accrues at the time the administrative determination complained of became final and binding against the petitioner. The Parole Board's determination to revoke petitioner's parole impacted him at the time the Board's determination to revoke parole was made in 1983. Any alleged claim petitioner had regarding the Parole Board's revocation of his parole accrued in 1983 and any Article 78 proceeding was required to have been commenced within four months thereafter. Petitioner challenges an administrative determination that is nearly three decades old. A challenge to the revocation of parole that is brought four months after the parolee is notified that parole is revoked is a time barred action. Thus, petitioner's petition should be dismissed as untimely.

Respondent also contends that the Petition is barred by the doctrine of res judicata. Petitioner has raised several such challenges before that have been dismissed on the same grounds—untimeliness. In October 2001, Justice Joseph G. Owen in Matter of Moore v Travis, Index No. 6611/01 (Sup. Ct. Orange Co. Oct. 16, 2001) dismissed a petition for writ of habeas corpus noting that his claim was actually in the nature of an Article 78 proceeding but that "the pertinent statute of limitations has long since run." In April, 2002, Justice Anthony Kane in Matter of Moore v Travis, Index No. 7527/01 (Sup. Ct. Albany Co. Apr. 16, 2002) dismissed an Article 78 petition that in part challenged the Division's denial of petitioner's request to appeal his 1983 parole revocation. In so doing, Justice Kane noted that "a claim, if any, accrued at the time the determination to revoke petitioner's parole was rendered." And in April 2003, Acting Justice Peter E. Corning, in Matter of Moore v Travis, Index No. 0176/03 (Sup. Ct. Cayuga Co. Apr. 7, 2003) dismissed on statute of limitations grounds yet another Article 78 petition challenging the 1983 parole revocation. Thus, petitioner's instant attempt to reverse the 1983 parole revocation should be dismissed on the basis of res judicata.

Respondent contends that an Article 78 proceeding may not be used to compel the [*6]division of parole to take discretionary action. The decision to revoke or modify any decision or determination by the Board of Paroles is a discretionary action that cannot be compelled under Article 78. Petitioner has styled his petition as respondent's failure to perform a nondiscretionary ministerial duty "to fully correct the consequential effects of his September 1983 parole revocation decision." As an initial matter, petitioner may not avoidthe fact that his renewed challenge to his 1983 parole revocation is untimely by dressing up his challenge in the guise of a mandamus. Additionally, mandamus can compel only ministerial rather than discretionary actions. The relief sought by petitioner, the revocation of the Parole Board's 1983 decision to revoke his parole, is a discretionary action that cannot be compelled pursuant to Article 78. Also, petitioner presents an inaccurate picture of the intent and effect of the Division's efforts to redact erroneous descriptions of petitioner's offense (i.e., the description that he entered victims' residence and had participated in the violent acts against the victims) from the Division's records. The Division's position has been that any redactions were solely for the purpose to prevent later adverse effects which might flow from an erroneous understanding of petitioner's specific conduct in the offense charge, and not to remove the 1983 parole revocation from his record. Respondent has consistently maintained that the introduction of petitioner's certificate of conviction at his final parole revocation hearing and petitioner's own admission at that hearing that he had violated his parole justified the revocation of petitioner's parole in 1983. The redactions made in the Division's records have not been made with the intention to expunge petitioner's 1983 parole revocation. Petitioner's request to reverse the 1983 revocation of his parole, in the guise of a mandamus petition, should be dismissed.

In reply, petitioner points out that respondent's cross-motion to change venue is untimely, as it was not served within 15 days of service of their demand to change venue.

Petitioner further argues that this proceeding is not time barred. It is uncontested that respondent refused or failed to respond to petitioners' September 14, 2009 written request to perform a duty enjoined by law. Thus, the proceeding was timely commenced in January 2010. Nor is this proceeding barred by res judicata, where petitioner does not challenge respondent's revocation of his parole set in 1983, but rather challenges respondent's failure to apply the relevant legal standard to his parole date after the courts determined that the underlying parole determinations have been found to be erroneous and expunged from petitioners' file. The challenges of the current petition were never raised in any previous litigation because the current modification and expungement of the parole violations did not take place until November 21, 2008.

Discussion

Cross-Motion to Change Venue

Although the respondent made a timely demand for a change of venue, their motion for such relief was untimely. A motion on notice is made when a notice of the motion is served (CPLR 2211). A defendant/respondent "may move to change the place of trial within fifteen days after service of the demand," unless the plaintiff/petitioner consents to the change of venue within five days of service of the demand (Simon v Usher, - NYS2d , 2010 WL 1816629 [1st Dept 2010] citing CPLR 511[b]). Here, the motion for a change of venue, made/ served on April 8, 2010 five days after service of the demand, must be rejected as untimely notwithstanding its [*7]apparent merit (see e.g., Simon v Usher, supra ("motion for a change of venue, made 20 days after service of the demand, must be rejected as untimely"); Siwek v Phillips, 71 AD3d 469, 894 NYS2d 871 [1st Dept 2010] (motion for a change of venue, made 35 days after service of the demand, must be rejected as untimely ); Krochta v On Time Delivery Serv., Inc., 62 AD3d 579, 879 NYS2d 428 [1st Dept 2009] ("Supreme Court properly denied the motion for change of venue as of right as untimely, having been interposed more than 15 days after service of AMC's antecedent demand (CPLR 511[b]"). Therefore, the cross-motion to change the venue of this proceeding to Albany County is denied.

Res judicata, or claim preclusion, is invoked when parties seek to relitigate entire causes of action between them and applies to matters which were actually litigated or could have been litigated in the earlier action (DaimlerChrysler Corp. v Spitzer, 6 Misc 3d 228, 782 NYS2d 610 [Sup Ct Albany County 2004]; see Hyman v Hillelson, 79 AD2d 725, 726, affd 55 NY2d 624). Pursuant to the doctrine of res judicata, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353, 357; see also, Smith v Russell Sage Coll., 54 NY2d 185; Matter of Reilly v Reid, 45 NY2d 24; Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558; Restatement [Second] of Judgments § 24). Petitioner's instant proceeding is largely premised on the 2008 expungement of information pertaining to his 1983 violation of parole. Based on the November 2008 letter from Counsel for the Parole Division, petitioner's role in the events involving the events of May 25, 1982 were erroneously described in parole file, and respondent expunged certain information accordingly in 2008. Thus, petitioner's instant proceeding regarding such expungement and its purported impact on his 1983 parole revocation has not been previously addressed and as such, it cannot be said a review of the implied denial of his letter in this regard is barred by res judicata.

Nor can it be said that petitioner's challenge to respondent's implicit denial of his September 14, 2009 letter request is time-barred. An article 78 proceeding must be commenced within four months after the administrative determination to be reviewed becomes "final and binding upon the petitioner" (Yarbough v Franco, 95 NY2d 342, 717 NYS2d 79 [2000]; CPLR 217[1]; New York State Assn. of Counties v Axelrod, 78 NY2d 158, 165, 573 NYS2d 25). An administrative determination becomes "final and binding" when the petitioner seeking review has been aggrieved by it. An administrative action is not final and binding within the contemplation of CPLR 217 until it "has its impact" upon the petitioner (Bludson v Popolizio, 166 AD2d 346, 347, 561 NYS2d 14 [ Dept 1990]). The Statute of Limitations does not begin to run until the petitioner receives notice of the determination (Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834, 470 NYS2d 130). Since respondent failed to formally respond to petitioner's most recent letter, it cannot be said that this proceeding challenging respondent's implied denial of his requests contained in such letter is time-barred.

Turning to petitioner's first request that the Court direct respondent to correct the declaration of delinquency stemming from petitioner's December 2006 parole revocation decision, such request is moot, for reasons stated above.

The balance of the petition, however, seeks an order declaring as arbitrary (1) the implied denial of petitioner's request for respondent to "correct" the "effects of the 1983 parole revocation decision, the underlying factual charge which" has been expunge . . .," (2) the [*8]preservation of respondent's "resulting decision intact which revoked the petitioner's September 1983 parole . . ., (3) respondent's application of ex post facto law to petitioner's maximum parole date, and (4) directing a recalculation of his 1975 and 1983 sentences, all stem of petitioner's claim that underlying charge was expunged. Such claims essentially challenge the determination resulting from the 1983 parole hearing, and are time-barred.

As a result of petitioner's October 27, 2008 letter and a November 18, 2008 telephone call between petitioner and Terrence X. Tracy, Counsel to the Division of Parole ("Counsel for the Parole Division") regarding "the possibility of having [petitioner's] September 14, 1983 revocation of parole set aside . . ." (see letter dated November 21, 2008 to petitioner), said Counsel reviewed and assessed petitioner's September 1983 parole revocation. By such letter dated November 21, 2008, Counsel for the Parole Division confirmed that "There is no dispute that Charge #

2 of the Violation of Release Report generated in connection with your September 1983 violation of parole erroneously described your role in the events of May 25, 1982; this is what prompted . . . the attendant expungement of information from your case records..." However, contrary to petitioner's contention, the expungement of the description that he entered the victims' residence and had participated in the violent acts against the victims, does not obviate petitioner's certificate of conviction at his final parole revocation hearing and petitioner's own admission that he had violated his parole. The latter factors were relied upon in the decision to revoke petitioner's parole in 1983, and petitioner cannot now challenge the respondent's reliance and consideration of these factors in this proceeding, brought decades after the determination was issued. The Court notes that the April 16, 2002 decision by Justice Kane stated that "a final revocation hearing was held at which it was determined that petitioner had violated the conditions of his parole release. No appeal was filed from that determination." (P. 2).

Thus, to the extent petitioner seeks to challenge the introduction of the certificate of conviction, on which the revocation was based, such challenge is time barred and barred by res judicata.

Conclusion

Based on the foregoing, it is hereby

ORDERED and ADJUDGED that the petition for an order (1) declaring the respondent's implied denial of the petitioner's September 14, 2009 request to correct the declaration of delinquency stemming from the petitioner's December 2006 parole revocation decision null and void; (2) declaring that the respondent's denial of petitioner's September 14, 2009 request to correct the consequential effects of the September 1983 parole revocation decision null and void; (3) declaring that respondent's action of leaving its resulting decision intact which revoked the petitioner's September 1983 parole, absent a valid parole violation, null and void; (4) declaring respondent's application of ex post facto law to petitioner's maximum parole date to be null and void; (5) directing respondent to recalculate the petitioner's 1975 and 1983 sentences using the legally mandated aggregation method, is denied and the petition is hereby dismissed; and it is further

ORDERED that petitioner serve a copy of this order with notice of entry upon respondent within 20 days of entry.

This constitutes the decision and judgment of the Court. [*9]

Dated: May 24, 2010________________________________________

Hon. Carol Robinson Edmead, J.S.C. Footnotes

Footnote 1: Petitioner's allegation that respondent failed to respond to his request for the modification of a delinquency date associated with his violation of parole release in 2006 is moot. Petitioner alleges that initially, he was taken into custody on August 23, 2006 for a parole violation for unauthorized telephone contact, and it was determined that his delinquency date was in or about July 2, 2006. Subsequently, the Appellate Division, Third Department dismissed that charge (Moore v Alexander, 53 AD3d 747 [3d Dept 2008]). Petitioner alleged that his delinquency time of approximately six weeks was never adjusted and that the Court should direct respondent to adjust the time. At the time of the filing of the instant petition, as a result of his 2006 parole revocation, petitioner's maximum release date was on or about May 4, 2015. Subsequent to the filing of this petition, respondent, in recognition of the Third Department's decision, recalculated petitioner's maximum release date which is now March 19, 2015. As petitioner's maximum release date has been re-calculated in light of the Third Department's decision, that branch of petitioner's Article 78 petition is now moot.

Footnote 2: On July 15, 1982, petitioner's then Parole Officer filed a Violation of Release Report against petitioner for allegedly violating conditions of his parole based on alleged facts of his new arrest. TheViolation of Release Report contained two charges one of which was subsequently abandoned by the Division and the other which reads as follows:

CHARGE #

2In Violation of Rule #

8, of the Conditions of Release, the parolee did enter and remain in the apartment of Joseph and Grace Bellantoni, located at 3235 Paulding Ave., Bronx, NY And did steal property from Grace and Joseph Bellantoni, to wit: $1,500, U.S. and did possess a dangerous instrument, to wit: a knife, on 5/25/82.