Matter of Martin v Evans
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Matter of Martin v Evans 2013 NY Slip Op 31112(U) March 19, 2013 Sup Ct, Albany County Docket Number: 3793-12 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 the Application of RICKY MARTIN, 82-A-4576 Petitioner, -against- ANDREA EVANS,CHAIRWOMAN, BOARD OF PAROLE, Respondent, For A Judgment Pursuant to ArticIe.78 of the Civil Practice Law and Rules. Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-T2-ST3870 Index No. 3793-12 Appearances : Ricky Martin h a t e No.82-A4576 Self represented Petitioner Fishkill Correctional Facility P.O. Box 1245 Beacon, NewYork 12508 Eric T.Schneidernzan Attorney General State ofNew York Attorney For Respondent The CapitoI Albany, New York 12224434I (Gregory J. Rodriguez, Assistant Attorney General of Counsel) DECIS1ONIORDERIJUI)G~NT George B. Ceresia, Jr., Justice The petitioner, an inmate a Fishkill CorrectionaI Facility, has commenced the instant t CPLR Article 78 proceeding to review a denial of parde. Petitioner argues that the Parole Board [* 2] failed to comport wit!^ statutory and regulatory mandates governing release i the case of persons n re-appearing for release consideration and the Board failed to utilize risk and needs principles required by Executive Law Section 259-c(4). Respondent opposes the petition contending that aIl laws were properly followed; that the petition fails to state a cause of action. Petitioner was convicted by verdict of tfie crimes of Murder 2nd, C r i m i d Possessiqn of a Weapon and by plea of Attempted Robbery and Attempted Criminal Possession of a Weapon on 9/08/82, Petitioner was sentenced to various indeterminate terms on the charges to be served concurrently. T h e controlling sentence is on the murder conviction of 25 y m to life. The parole denial being challenged arises from petitioner s fifth appearance before the board on December 16,201 1. In its decision denying Petitioner parole release, the Board stated: Denied 12 months; Next appearance 12/2012 Parole release is denied. After a personal interview, record review and deliberation, this panel finds release incompatible with the public safety and welfare of the community, and would so deprecate the seriousness of your crime as to undermine respect for the law. Your criminal record reflects prior unlawful behavior. When you committed this murder second degree offense, you were on probation. This repeated criminal behavior is a concern for this paneI. Your criminal conduct was senseless with a total disregard for human Iife. The panel notes your positive programing, good disciplinary record, release plans, and your educational achievements, and letters of support. However, despite these accornpMments, this panel finds more compelhg the seriousness of your murder second degree offense. There is a reasonable probability you would not live a law abiding life. All Commissioners concur. Petitioner filed an administrative appeal by filing an Appeal on January 30,2012. The Appeals Unit af ¬imedthe Board s decision, mailing such decision to petitioner on August 6, 2012. This article 78 petition is verified June 27,2012 and stamped by the office of the Albany 2 [* 3] County Combined Courts on July 2,2012. The Order to Show cause was signed July 23,2012. Petitioner asserts that the Parole Board actions were arbitrary, capricious, or irrational, in that (i) it failed to properly apply the law to persons re-appearing (ii} that the decision of the board lacked consideration of the 20 1I amendments to Executive Law 259. Parole Release decisions are discretionary and, if made pursuant to statutory requirements, not reviewable ( Matter of D La Cruz v Travis, 10 AD3d 789 [3d Dept., 20041; e Matter of Collado Y New York State Division of Parole, 287 AD2d 921 [3d Dept., Z O ] . Ol) Furthermore, only a showing of irrationality bordering on impropriety on the part of the Parole Board has been found to necessitate judicial internention ( see Matter of Silmon v Travis, 95 NY2d 470,476[2000], quoting 50 NY2d 69, 77 [2980]; see also Matter of Graziano v Evans, 90 AD3d 1367,1369 [3d Dept., 20111). hthe absence of the above, there i no basis upon which to disturb the discretionary detedmtion s made by the Parole B o d ( see Matter of Perez v. New York State of Division of Parole, 294 AD2d 726 [3rd Dept., 20021). The Court finds that the Parole Board considered the relevant criteria in making its decision and its determination was supported by the record, see R e d v Evans, 94 AD3d 1323 (Third Dept. 2012). The same criteria applies to parole determinations whether it is a first or subsequent appearance. A review of the transcript of the parole interview reveals that petitioner admitted to the shooting of someone to death; attention was paid to such factors as petitioner s completion of vocational programs, hiis clean disciplinary record and his plans for a job and living m mgements upon reIease. Petitioner submitted a parole plan to the Board. Petitioner 1 Transcript of parole interview, Respondent s exhibit E 3 [* 4] described his position as an inmate program assistant. Petitioner was afforded ample time in the hearing to make comments supportive of his release. Petitioner expressed his remorse for the victim s family. The decision was sufficiently detailed to inform the petitioner of the reasons for the denial of parole and it satisfied the requirements of Executive Law §259-i(see Matter of Siao-Pao, 11NY3d 773 [2008]; Matter of whitehead v. Russi, 201 AD2d 825 [3rd Dept., 19941; M m of Grsen 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 ( see Matter of Matos v New York State Board of Parole, 87 AD3d 1 193 [3d Dept., 201I ] ; Matter of Dudley v Travis, 227 AD2d 863, [3rd Dept., 1996). The Parole Board is not required to enumerate-or give equal weight to each factor that it considered in determining the inmate sapplication, or to expressly discuss each one ( see Matter of MacKenzie v Evans, 95 AD3d 1613 [3d Dept., 20121; Matter of Matos v New York State Board of Parole, supra; Matter of Young v New York Division of Parole, 74 AD3d 1681,1681-1682 [3rd Dept., 20101; Matter of Wise v New York State Division of Parole, 54 AD3d 463 [3rd D q t . , 20081). Nor must the parole board mite the precise statutory language set forth in the first sentence of Executive Law 5 2594 (2) (c) (A) ( see Matter of Silver0 v Demison, 28 AD3d 859 [3rd Pept., 20061). h other words, [wlhere appropriate the Board may give considerabk weight to, or place p d c d a r emphasis 0% the circumstances of the crimes for which a petitioner is incarcerated; as well as a petitioner s criminal history, together with the other statutory factors, in determining whether the hdividd will live and remain a liberty without violating the law, whether his or t her release is not incompatible with the welfare of society, and whether release will deprecate 4 [* 5] the seriousness of [the] crime as to undermine respect for [the] law ( Matter of Durio v New York State Division of Parole, 3 AD3d 8 16 [3rd Dept., 20043, quoting Executive Law $2594 121 [c] [A], other citations omitted). As relevant here, the 20 I 1 legislation amended Executive Law Section 259-c, as it relates to parole determinations to establish a review process that would place greater emphasis on assessing the degree to which inmates have been rehabilitated,and the probability that they would be able to remain crime-fiee if released. Said subsection now recites: [t]he state board of parole shall [259-c] (4) establisb written procedures for its use i making parole decisions as n required by law. Such Written procedures shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist: members of the state board of parole in determining which inmates may be released to parole supervision . This amendment was made effective six months after its adoption on March 3 1,201 1, that is, on October 1,2011, 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 i xllaking release detemhtions. This amendment was effective immediately upon n its adoption on March 3 1,201 1 Under the former law the factors to be considered were listed i n I different sections of the E.xecutiveLaw. The amendment did not result i a substantive c h g e in n the criteria which the Parole Board should consider in rendering its decision but placed the factors in one section. As a result, the factors for the Board to consider in determining whether Petitioner should be released to parole are the same whether under the former version of Executive Law 2594 or -the current one. On October $ 2 0 1 1 the Chairperson of the Parole Board 5 [* 6] issued a Memo containing the written procedure to be followed by the board in making parole decisions. The memo makes it clear that steps taken by an inmate toward rehabilitation are ta be discussed at the interview. The record does establish that the statutory criteria were considered. Petitioner s cIaim that the respondent failed to consider the 20 1 1 amendments to the Executive Law is without merit. The Court has reviewed and considered petitioner s remaining arguments and contentions and finds them to be without merit. The Court finds that the determination was not made i violation of lawful procedure, is n not affected by an m r of law, and is not irrational, arbitrary and capricious, or constitute an abuse of discretion. The Court conchdes that the petition mwt 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. The Court, by separate order, is seahg all records submittal for i camera review. n AccordingIy it is ORDERED and ADJUDGED, that the petition be and hereby is dismissed. This shall constitute the decision, order and judgment of the Court. The origjnal decisionlordedjudgmentis 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 decisiodorderljudgment and delivery of this decisiodorderljudgment does not constitute entry os filing under CPLR Rule 2220. C o w l is not relieved from the applicable provisions of that rule Respondent s Exhibit K 6 [* 7] respecting filing, entry and notice of entry. ENTER 1f Dated: March 20 13 Troy, New York /h!L,x,d George B.Ceresia, Jr. Supreme Court Justice Papers Considered: 1. 2. 3, 4. 5. Order To Show Cause dated July 23,2012 Verified Petition dated June 27,2012 with exhibits Petitioner s memorandum of law Answer Dated November 6,2012 Atffrmation o f Gregory J. Rodriguez, Esq, dated November 8,2012 with exhibits. 7 [* 8] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Matter of the Application of RICKY ¬@&TIN, 82-A-4576 Petitioner, -against- ANDREA EVANS, CHAIRWOMAN, BOANI OF PAROLE, Respondent, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. , Supreme Court Albany County Article 78 Term H m George B.Ceresia, Jr., Supreme Court Justice Presiding RTI # 01-12-ST3870Index No. 3793-12 12 SEALING ORDER The following documen?shaving been filed by the respondent with the Court for h cumem review i com&on with the above matter, namely, respondent s Exhibit B, n Presentence Investigation keports, and respondent s Exhibit ID, Confidential Portion of Inmate Status Reports, it is hereby ORDERED, that the foregoing designated docpents, including all duplicates and copies thereof, shall be filed as seaIed instruments and not made available to any person or public or private agency unless by further order of the Cow. ENTER Dated: March 19 ,2013 Troy, New Yo& George B.Ceresia, Jr. Supreme Court Justice ... :-
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