Matter of Feliciano v NYS Bd. of Parole Appeals Unit

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Matter of Feliciano v NYS Bd. of Parole Appeals Unit 2013 NY Slip Op 31114(U) March 19, 2013 Sup Ct, Albany County Docket Number: 4766-12 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts ( for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COl,hU- COUNTY OF ALBANY In The Matter of the Application of LUIS FELICKNO, 07-A-3332 Petitioner, -against- NEW YORK STATE BOARD OF PAROLE APPEALS UNIT, Respondent, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Supreme Court Albany County ArticIe 78 Term Hon. George B. Ceresia, Jr,, Supreme Court Justice Presiding RSI # 01-12-8T3398Index No.4766-12 Appearances: Luis Feliciano b t e No. 07-A-3332 Self represented Petitioner Livingston Correctional Facility P.O. Box91 Sonyea, New York 14556 Eric T. Schneideman Attorney GeneraI State of New York Attorney For Respondent The Capitol Albany, New York 12224-0341 (Laura A. Sprague, Assistant Attorney General of Counsel) George B. Ceresia, Jr., Justice The petitioner, an inmate at Livingston CorrectionalFaciIity, has c o m e n c d the ins&t CPLR Article 78 proceeding to review a denial of parole. Petitioner argues that the Parole Board decision was improperly basted upon the serious nature of the crime without consideration of his [* 2] Earned Eligibility Certificate or amendments to Executive Law effective in 201 1 . Petitioner was convicted by plea of the crime of Criminal Sale of a Controlled Substance 4 degree on 4/14/92. Petitioner was sentenced to 6 months imprisonment and 5 years probation. ' Petitioner absconded and was later located i prison in the State of Pennsylvania. Petitioner was n convicted h Pemsylvania for the killing of hiis pregnant girlfriend. Upon completion of his imprisonment petitioner was returnedto New York where he was resentenced on June 6,2007 to a term of 5 to 15 years on the C M Sale of a ControIIed Substance conviction. The parole denial being cMlenged arises from his initial appearance before the B o d on January 3 1,2012. In its decision denying Petitiotler parole release, the Board stated: Denied 24months; 1/2014 Despite receipt of an Earned Eligibility Certificate, after w careful review of your record, a personal izlterview and deliberation, parole is denied. Your institutional record and release plans are noted. Required statutory k t o r s have been considered, inchding your risk to the community, rehabiIitation efforts and your needs for successful re-integrationinto the commUnity. This panel 4 s concerned, however, about your lengthy history of unlawful condwt, which, when considered with required and relevant factors, leads to the conchsion, that if released at this time, there is a reasonable probabihty tbat your would not live and r e d at liberty without violating the law and your release at this time is incompatible with the welfare and safety of the community. You appear before this Panel with the serious instant offense of criminal sale of controlled substance f o d , wherein, you sold cokine. Your record includes a felony conviction in Pennsylvania for killing a victim with a gun. Consideration has been given to your receipt of an Earned Eligibility Certificate, an assessment of your risks and needs for success on parole, any program completion and any satisfactory behavior; however, your release at this time is denied. ¬'&timer filed an administrative appeal by filing an Appeal on April 12, 2012. The Appeals Unit affirmed the Board's decision, mailing such decision to petitioner on October 4, 2 [* 3] 2012. This article 78 petition is verified August 10,2012 and stamped by the office of the Albany County Combined Courts on August 20,2012. Petitioner asserts that the Parole Board actions were arbitrary, capricious, or irrational, in that (i) it only considered the crimes he was convicted of without consideration of his Earned Eligibility Certificate and (ii) that the decision of the Board lacked consideration of the 201 1 amendments to Executive Law 259. Petitioner i paragraph 8 of his petition recites As the terns of Comction LAW makes n plairi the receipt o f an Earned Eligibility Certificate does not preclude the Board from Denying Parole, nor does it eliminate the Board s discretion in making the release decision.. While ,. conceding the Board s discretioxl2lryauthority petitioner argues that the decision itself lacked a reasonable or rational explanation denying petitioner release to parole. Petitioner contends the decision fails to provide sufficient details for parole denial. Although petitioner received an Earned Eligibility Certificate, he is not automaticaIIy entitled to discretionary parole release, Matter of Dorman v New York State Division of Parole, 30 AD3d 880 (Third Dept. 2006). . Parole Release decisions are discretionary and, if made pursuant to statutory requirements, not reviewable ( Matter of De La Cnrz v Travis, 10 AD3d 789 [3d Dept,, 2QQ4]; Matter of Collado v New York State Division of Parole, 287 AD2d 921 [3d Dept., 20011). Furthermore, only a showing of irrationaIity bordering on impropriety on the part of the Parole Board has been found to necessitate judicial intervention ( see fitter of Silmm v Travis, 95 NY2d 470,476[ZOOO], quoting Matter of Russo v. New York State 1 6 of Parole, 50 NY2d 69, 3. 77 [1980];see also Matter of Graziano v E.vam, 90 AD3d 1367,1369 [3d Dept., 20111). In the absence ofthe above, there is no basis upon which to disturb the discretionary determination 3 [* 4] made by the Parole Board ( 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 i making its n decision and its determination was supported by the record, see Reed v Evans, 94 AD3d 1323 (Third Dept. 2012). A review ofthe transcript of the parole interview' reveals that, i addition to n the instant offem which petitioner admitted to details of at the parole interview, petitioner admitted to the killing of his girIlkiend with a gun;attention was paid to such factors as petitionds CompIetion of vocational programs, his clean disciplinary record and his plans for a mechanic's job and living arrangements upon release. Petitioner was afforded ample time i the n hearing to make comments supportive of his release, petitioner expressed his regret for the harm he caused other individuals and for the bad decisions he made while under the influence of controlled substances. The decision was SufEciently detailed to inform the petitioner of the reasons for the denid of parole and it satisfied the requirements of Executive Law $259-1( see Matta of Siao-Pao,1 1 NY3d 773 [2008]; Matter of Whitehead v. Russi, 201 AD2d 825 [3rd Dept., 19941; Matter of Green v. New York State Division of ParoZe, 199 AD2d 677 [3rd Pept., 19933). It is proper and, i fact, required, that the Parole Board consider the seriousness ofthe inmate's crimes n and their violent nature ( see Matter of Matos v New Yo& State Board of ParoIe, 87 AD3d 1193 [3d Dept., 20111; Matter of Dudley v Travis, 227 AD2d 863, [3rd Dept., 19963. The Parole Board is not required to enumerate or give equal weight to each factor that it consided in determining the inmate's application, or to expressly discuss each one ( see Matter of MacKenzie ' Tramscriptof parole interview, Respondent's exhibit E 4 , [* 5] v Evans, 95 AD3d 16 13 [3d Dept., 20 121; Matter of Matos v New York State Board of Parole, supra; Matter of Young v New York Division of Parole, 74 AD3d 168 I, 168 I - I682 [3fi Dept., 20101;Matter of Wise v New York State Division of Parole, 54 AD3d 463 [3rd Dept., 20081). Nor must the parole board recite the precise statutory language set forth i the fmt sentence of n Executive Law 6 2594 (21 (c) (A) ( see Matter of Silver0 v Dennison, 28 AD3d 853 [3rd Dept., 20061). In other words, [wlhere appropriate the Board may give considerable weight to,or place particular emphasis on, the c i r c w ~ c eof the crimes for which a petitioner is incarcerated, as s well as a petitioner s criminal history, together with the other statutory factors, in determining whether the individual will live and remain at liberty without violating the law, whether his or her release is not incompatible with the we ¬& of society, and whether release will deprecate the seriousness of [the] crime as IO undermine respect ¬or [the] law (Matter of T)urio v New York S a e Division of Parole, 3 AD3d 816 [3rd Dept., 20041, quoting Executive Law $2594 121 tt [c] [A], other citations omitted), As relevant here, the 2011 legislation amended Executive Law Section 259-c, as it relates to parole determinations to establish a review process that would plwe greater emphasis on assessing the degree to which inmateshave 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) establish written procedures for is use i making pmIe decisions a t n s 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 i determining which b a t e s may n be released to parole supervision . This amendment was made effective six months after its 5 [* 6] adoption on March 3 I, 20 1 I, that is, on October 1,201I. In the second change, Executive 2594 (2) IC) w& amended to incorporate into one section the eight factors which the Parole Board was to consider in making release determinations. This amendment was effective immediately upon its adoption on March 3 1,20 11. Under the former law the fixtors to be considered were listed in different sections of the Executive Law. The amendment did not result in a substantive change in the criteria which the Parole Board should consider in rendering its decision but placed the factors in one section. As a resdt, the factors for the Board to consider i determining whether n Petitioner should be released to parole are the same whether under the former version of Executive Law 259-i or the current one. On October 5,201 I the Chairperson of the Parole Board issued a Memozcontaining the written procedure to be followed by the Board i making parole n decisions. The memo makes it clear that steps taken by an inmate toward rehabilitation are to be discussed at the interview. The record does establish that the statutory criteria were considered. Petitioner s clah that the respondent failed to consider the 201 1 amendments to the Executive Law is without merit. The Court bas reviewed and considered petitio& s remaining arguments and contentions and finds them to be without merit. The Court finds that the determination was not made in violation of lawful procedure, is not affected by an enor of law, and is not irrational, arbitrary and capricious, or constitute an abuse of discretion. The Court concludes that the petition must be dismissed. The Court observes that certain records of a confidential naturerelating to the petitioner Respondent s Exhibit K 6 [* 7] were submitted to the Court as a part of the record. The Court, by separate order, is seaXing d 1 m r d s submitted for in camera review. ORDERED and ADJUDGED, that the petition be and hereby is dismissed. This shall constitute the decision, order and judgment of the Court. The original decisiodorderbudgment is returnedto the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing ofthis decisiodorder/judgment and delivery of this decisiododw'judgment does not constitute entry or f i g under CPLR Rule 2220. Counsel is not relieved h m the applicable provisions of that rule respectmg filing, entry and notice of entry. ENTER Dated: March l? 2013 Troy, New York /l A. &0 orge B. Ceresia, Jr. Supreme Court Justice Papers Consided 1. 2. 3. 4. 5. Order To Show Cause dated September 10,2012 Verified Petition dated August 10,2012 Answer Dated November 13,2012 Affirmation of Laura A. Sprague, E q d t d November 13,2012 with exhibits Reply affidavit with Exhibit dated November 21,2012 7 [* 8] SUPREME COURT .. STATE OF NEW YORK COUNTY OF ALBANY In The Matter of the Application of LUIS FEUCIANO, 07-A-3332 Petitioner, -against- NEW YORK STATE BOARD O PAROLE F APPEALS UNIT, Respondent, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rdes. I, Supreme Cowl Albany County Article 78 Term Hon. George B.Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-12-ST3398Index No. 4766-12 The following documents having been filed by the respondent with the Court for in camera review in connection with the above matter, namely, respondent s Exhibit B, Presentence InvestigationReport, and respondent sExhibit D, Co&de.ntid Portion ofInmate Status Report, it is hereby ORDERED, that the foregoing designated documents, including dl duplicates and copies thereof, shall be filed as sealed instruments and not made available to any person or public or private agency unless by further order of the Court. ENTER Dated: March 19 ,2013 Troy, New York A /I George B. Ceresia, Jr. Supreme Court Justice