Matter of Batista v NYS Dept. of Corr. & Community Supervision
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Matter of Batista v NYS Dept. of Corr. & Community Supervision 2013 NY Slip Op 31111(U) March 4, 2013 Sup Ct, Albany County Docket Number: 2628-12 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 COUNTY OF ALBANY In The Matter of HECTOR BATISTA, Petitioner, -againstW Y S DEPARTMENT OF CORRECTIONS AND COMMUNITY SuPERmSIoN INys BOARD OF PAROLE), Respondent, 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 COWJustice Presiding RJZ # 01-12-ST3646 IndexNo. 2628-12 Appearances: Cheryl L. Kates, P.C. Attorney For Petitioner P.0. Box 734 Victor, NY 14564 Eric T. Schneideman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Gregory J. Rodriguez, Assistant Attorney General of Counsel) George B. Ceresia, Jr., Justice The petitioner, an inmate i the custody of the New York State Depaxtrnent of n Corrections and Community Supervision, commenced fie instant CPLR Article 78 proceedingto review a determination dated April 5,201 1 it) which he was denied release on [* 2] parole. On December 8, I993 he was sentenced for the following crimes: murder in the second degree, robbery in the first degree , criminal possession of a weapon i the second n degree and criminal possession of a weapon in the third degree. He was sentenced to a term of fifteen years to life on the murder charge, one and one third to four years on the robbery charge, one and one half to four and one half years on the second degree criminal possession of a weapon charge, and two and one third to seven yeas on the third degree criminal possession of a weapon charge. Among the arguments set hrth i the petition, the petitioner n contends that the respondent failed to perform a risk and needs assessment as required under Executive Law 8 2594 as amended in 20 1I. The petitioner asserts that the respondent failed to review and consider defense attorney s official statements; and considered erroneous information. He maintains that the respondent erred i not reviewing petitioner ssentencing n mhutes on the record, and did not make proper refer& to his juvenile robbery case -. rnhutes. He contends that the Parole Board determination was conclusory, and improperly based solely on the serious nature of his crimes, to the exclusion ofall other positive factors. The petitioner argues that the Parole Board erred in not considering all mitigating factors attendant to petitioner s crimes, including petitioner s age at the time of the offenses. The reasom for the respondent s determination to deny petitioner rdease on parale are set forth as follows; Parole is denied, After a care ¬ul review of your record, a personal interview, and due deliberation, it is the deterkination of this panel that, if released at this time, there is a reasonable The robbery charge was a prior conviction for which die petitioner had apparently been granted probation as a youthful offender. He was found to haTle violated the terns of probation by reason ofthe other convictions. 2 [* 3] probability that you would not liye at liberty without violating the law, and your release at this time is incompatible with the welfare and safety of the community and would so deprecatethe seriousness of the crime as to show disrespect for the law. This decision is based on the following: you stand convicted of the following serious offenses of murder24 cpw 3 4 robbery Ist, cpw 2 di which in the fmt instance, you shot a 16 year old n male causing his death. In mother instance, you were found i n a taxi with a loaded pistol and wearing a body m o r vest and lastly took a 16 year old s beeper whiIe flashing a gun. These crimes show your willingness to put you own needs abovethose of society and also your lack of respect for human lifeConsideration has been given to your program completion and satisfactory behavior, however your releaTe at this time is denied. Parole Release decisions are discretionary and, if made pursuant to statutory requirements, not reviewable ~, 10 AD3d 789 [3d Dept., 20041; Matter of Collado v New York State Division of Parole, 287 AD2d 921 [3d Dept., 20011). Furthermore, only a showingof irrationality bordering on impropriety on the part of the Parole Board has been found to necessitate judicial intervention @ 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 [ 19801; see also Matter of Graziano v Evans, 90 AD3d 1367,1369 [3d Dept., 201 XI). In the absence of the above, there is no basis upon which to disturb the discretionary determination Made by the Parole Board lsee Matter of Perez v. New York State of Division of Parole, 294 AD2d 726 [3rd Dept., 20023). The Court fm& that the Parole Board considered the relevant criteria in making its decision and its determination was supported by the remrd. A review of the transcript ofthe parole interview reveals that, i addition to the instant offense, attention was paid to such n factors as petitioner s institutional programming, including participation in the ART 3 [* 4] program, and his employment as aporter- It was noted that he had no disciplitlary hhctions over the last few years. Mention was made of his release plans, which included residing with his fiancé, and working as a furniture mover. CommissionerRoss noted that the petitioner had submitted letters fiom various individuals i support of his release. The petitioner was n afforded an opportunity to speak on his own behalf. The decisionwas sufficiently detailed to inform the petitioner of the reasons for the denial of parole and it satisfied the requirements of Executive Law 525% @ Matter of Siao-Pao, 11 NY3d 773 [2008]; Matter of whitehead v. Russi, 201 AD2d 825 [3rd Dept., 19941; Matter of Green v. New York State Division of Parole, 199 AD2d 677 [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 &Matter of Matos v New Yo& State Board of Parole, 87AD3d I 193 [3d Dept., 20111; Matter of Dudlev v Travis, 227 AD2d 863, [3rd Dept., 1996), as well as the inmate's criminal history &Matter of F h d v Travis, 239 AD2d 629 [3rd Dept., 19971; Matter of Cohmv Gonzalez, 254 AD2d 556 [3rd Dept., 19981). The Parole Board is not required to enumerate or give equal weight to each factor that it considered i determining the inmate's application, or to expressly discuss each one @ n Matter of MacKenzie v Evans, sutlra; Matter of Matos v New York Stale Board of Parole, supra; Matter of YOUP v New York Division of Parole. 74 AD3d 1681, 1681-1682 [3' Dept., 20IO]; Matter of Wise Y New York State Division o f 54 AD3d 463 [3d Dept., 2 0 1 . Nor mustthe parole board recite the precise statutory language set forth i the first 08) n sentence of Executive Law 5 2594 (2) (c)(A) (see Matter of Silvvero v Dennison, 28 AD3d 859 [3d Dept., 20061). In other words, "[wlhere appropriate the Board may give 4 [* 5] considerableweight to, or glace particular emphasis on, the circumstances of the crimes for which apetitioner is incarcerated, as well as a petitioner s criminal history,together with the .. other statutory factors, in detmmtmg whetha the individual will live and remain at liberty without Violating the law, whether his or her release is not incompatible with the welfare of society, and whether release will deprecate the seriousness of [the] crime &s to undermine respect for [the] law (Matter of Dwio v Mew York State Division of Parolg 3 AD3d 816 [3rd Dept., 20041, quoting Executive Law $2594 [Z] [c] [A], other citations omitted). As pointed out by the petitioner, under Executive Law 5 2594 ( )(c) (A) (vii) the 2 Parole Board is required to consider the recommendations of the sentencing court and recommendations of the attorney for the inmate. With regard to recommendations of the sentencingcourt, the transcript of the December 8,1993 sentencing was a part of the record before the Parde,Bomd. With regard to the robbery charge, however, which was a re- sentenchg after the petitioner w s found to have violated the terms of probation, the a petitioner argues that the respondent failed to consider the judge s recommendationsf h m the initial sentencing which placed the petitioner on probation. In the Court s view, the operative sentence here is the one which resulted i petitioner s state incarceration, not the n initial sentence. This is particularly so since there would be no reason for the Court to make a recommendation for or against parole release in imposing a sentence of probation. Apart from the foregoing, from the documentary evidence i the record, it does not n appear that the petitioner was sentenced on December 8,1993 as a juvenile offender. This being said, the record is replete with references to petitioner s age at the time these offenses 5 [* 6] which inmates may be released to parole supervision (L 201I ch 62, Part C, Subpart A, 5 3 8-b). This amendment was made effective six months after its adoption un March 3 I, 201 1, that is, on October 1,201 1 (see L 201 1, ch 62, Part C, Subpart A, 0 494fl). In the second change, Executive 2594 (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 201 1 ch 62, Part C, Subpart A, 9 28-f-1). This amendment was effective immediately upon its adoption on March 3 1,201 I (see L 201 1, ch 62, Part C, Subpart A, 5 49). However, it did not result in a substantive change i the criteria which the Parole Board should consider in rendering n its decision. With regard to the issue of retroactivity of the 20 1 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 are presumed to have prospective application unless the Legislature sprefermce for retroactivity is explicitly stated or clearly indicated (Matter of GleasonvMichaelVeeLtd.,96 NY2d 117,122 [2001], citingPeoplevOIiver, 1NYZd 152, 157). While remedial Iegislation 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 & 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 731, Platkm, Richard MA, Ct., Albany Co., 20121, the State Legislature Sup. considered the question of the effectiveness of the 20 11 Amendments and determined that the new procedures contemplated by the amendments to Executive Law $259-c (4) should 7 [* 7] not be given effectwith respect to administrative proceedings conducted prior to October 1, 20 1 1." This Court agrees. Under such circumstances,there clearly was no LegisIaeve intent that said amendments be applied retroactively to parole determinations rendered prior to October 1,201 I (see id.; see alsoMatter ofTafarivEvms, 2012 NY Slip Op 51355U [Sup. Ct., Franklin Co., 20121) Lastly, 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., 20023, lv denied 98 NY2d 604). The Court has reviewed petitioner's remaining arguments and contentions and finds them to be without merit. The Court fmds the decision ofthe Parole Board was not irrational, i Violation of n lawful procedure, affected by an error of law, h t i o n a l or arbitrary and capricious. The petition must therefore be dismissed. The Court observes that certain records of a Confidential nature relating to the petitioner were submitted to the Court as a part of the record. l%e Court, by separate order, is sealing all records submitted for in cumem review. Accordingly, it is G E D and fiJUDGEb, that the petition be and hereby is dismissed. m a This shall constitute the decision, order and judgment o f the Court. The original decisionl'o~d~/jjd~ent is returned to the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this 8 [* 8] decisiodorderljudgment and delivery of this decision/order/judgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that d e respecting filing, entry and notice of entry. ENTER March Dated: ,2013 Troy, New Yo& George B. Ceresia, Supreme Court Justice Papers Considered: 1 . 2. 3. Petitioner s Order To Show Cause dated May 8,2012, Petition, Supporting Papers and Exhibits Respondent s Answer dated December 2 I, 2012, Supporting Papers and Exhibits Petitioner s Reply dated December 27,2012 9 [* 9] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Matter of HECTOR BAIISTA, Petitioner, -against- NYS DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERWSION (NYS BOARD OF PAROLE), Respondent, 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 Court Justice Presiding WI # 01-12-ST3646 Index No. 2628-12 12 SEALING ORDER The following documents havhg been filed by the respondent with the Court for in camera review in connection with the above matter, rrmely, respondent s Exhibit B, Presentence Investigation Report, Exhibit ¬ , Letters To the Criminal Defense Official I Attorney, and respondent s Exhibit F, Confidential Portim of Inmate Status Report. it is hereby ORDERJD, that the foregoing designated docurrtxts, including all duplicates and copies thereof, shall be filed as sealed instruments and nut m.ade available to any person or public or private agency unless by further order of the Court. . ENTER Dated: March f ,2013 Troy, New York Supreme Cnurt Justice
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