Matter of Fanning v Evans

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Matter of Fanning v Evans 2013 NY Slip Op 31117(U) March 19, 2013 Sup Ct, Albany County Docket Number: 04945-12 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 YO= Sl)"RJ%!E COURT COUNTY OF ALBANY I The Matter of the Application of n FRANCIS B. FANNING, II, 92-B-1827 Petitioner, -against- ANDREA EVANS, 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 RJI # 01-12-ST3975 hdex NO.4945-12 Appearances: Francis B. Fuming, I I Inmate NO. 92-B-1827 Self represented Petitioner Mohawk Correctional Facility 6514 Rt. 26 PO Box 8450 Rome, New York 13440 Eric T.Scbneiderman Attorney General State of New Yo& Attorney For Respondent The Capitol Albany, New York 12224-0341 (Keith A. Muse, Assistant Attorney Gentml of Counsel) DECISIONlORDEWJUDGMENT George B. Ceresia, Jr., Justice The petitioner, a inmate at Mohawk Correctional FaciIi~y, commenced the instant n has CPLR Article 78 proceeding to review a denial of parole. Petitioner argues that the Parole Board decision was impmperIy based upon the serious nature of the c,me without consideration of his [* 2] prison record. Petitioner was'convictedafter t r i a ~ two counts of ~ o d c m y degree; two counts of of Sexual Abuse 1* degree; and two counts of Endangering the WeIfare of a Child on July 27,1992. He was sentend to two consecutive terns of 8 113 to 25 yemi-onthe Sodomy convictions and 2 1/3 to 7 years on the Sexual Abuse convictio& to be served concurrently. He was also sentenced to I year on the Endangering the Welfare of a Child convictions. 1 % ~ crimes involved two female children ages 8 and 10 at the time of the crimes. The .petitionerws.Sabysittingthe children at the time. Petitioner has appeared on two other occasi0~s before thk f m l e Board and was denied parole each time. The parole denial being challenged arises from 1Eis third appearance before the Board on June 14,20 1I. h its daision denying Petitioner paroIe release, the Bad stated: or Denied - Hold for 24 months, Next appearance 612013 After a review of the record and intewiew, the panel has determinedzhat if released at this time your release would be incompatible with the welfare of society and would so deprecate the serious nature of the crime as to u n d d n e respect for the law. This decision is based on the following factors: Yow instant offenses are two cumts of sodomy second degree and two counts of s e abuse ftrst degree. Your crimes involved you engaging in deviant s m d conduct with d two young female victims. The Board notes your program accomplishments andktkrs of support. More compelling, however, is the extreme violence you exhibited towards two vulnerable victims, and your callous disregard for their physical and emotional well-being. Based on the above, your reJease at this time is not appropriate. Petitioner filed an administrative appeal. by filing a Notice-of Ap'@ on June 19,2011 The appeal brief was submittsd on November 29,20 11. The Appeds Unit afXirmed the Board's 2 [* 3] decision, m d m g such decision to petitioner and hiis attorney on April 23,2012. This article 78 petition is verified August 21,2012 and stamped by the office of the Albany County Combined Courts on September 21,2012. Petitioner asserts in two causes of action that the Parole Board actions were arbitrary, capricious, or irrational, i that (i) it only considered the crimes he was convicted of without n consideration of his prison record and (ii) the respondent demonstrates a predetermined policy of denying sex offenders parole, Parole Release decisions are discretionary and, if made pursuant to statutory requirements, not reviewable ( mr of D L Cruz v Tmvis, 10 AD3d 789 [3d Dept., 20041; e e a Matter of Collado v New York State Division of Parole, 287 AD2d 921 [3d Dept., 20011). Furthemore, only a showing of irrationality bordering on impropriety on the part of the Parole Board has been found to necessitate judicial intervention ( see Matter of Silmon v Travis, 95 NY2d 470,476 [2000], quoting Matter of Rwso v. New York State Bd. of Parole, 50 NY2d 69, 77 [1980]; see also Matter of Graziano v Evans, 90 AD3d 1367,1369[3d Dept., 201 11). In the absence of the above, fiere is no basis upon which to disturb the discretionary determination made by the Pmle Board ( see Matter of P&z v. New York State of Division o f Parole, 234 AD2d 726 [3rd Dept., 20023). The Court finds that the Parole Board considered the relevant criteria in making its decision and its Cfetemhationwas supported by the record. A review of the transcript of the parole interview reveals that, i addition to theinstant offenses which petitioner admitted to n details of at the parole interview, attention was paid to such factors a petitioner santicipated s Transcript of parole interview, Respondent s exhibit F 3 [* 4] completion of the Sex Offender Program, job skills he acquired h m prison programs, his disciplinary record and his plans for a job and living arrangements upon release, and letters of support. Petitioner was afforded ample time in the hearing to make comments supportive of his release, petitioner expressed his regret for the impact the crimes had and will have upon the victims. The decision was sufficiently detailed to infom the petitioner of the reasons for the denial of parole md it satisfied the requirements of Executive Law 5259-1 ( see 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 Pept., 19931). It is proper and, in fact, required, that the Parole Board consider the seriousness of the i m t e s Crimes and their Violent nature ( see Matter of Mktos v New York State Board of Parole, 87 AD33 1193 [3d Dept., 201I]; Matter of Dudlev 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 i n determining the inmate s application, or to expressly discuss each one ( see Ma#er of MacKemie v Evans, 95 AD3d 1613,1614 [3d Dept., 20121; Matter of Matos v New York State Board of Parole,; Mitter of Young v New York Division of Parole, 74 AD3d 168 1, 1681- I682 [3rd Dept., 20101; Miitkc of Wise v New Yo& 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 § 259-1 (2) (c) (A) ( see Matter of Silver0 v Dennison, 28 AD3d 859 [3rd Dept., 20061). In other words, [w]here appropriate the Board may give considemble weight to, or place particular emphasis on, the circumstances ofthe crimes for which a petitioner is incarcerated, as we11 as a petitioner s criminal history, together with the other statutory Eactors, in d e t e m k n g whether the individual will live and remain at liberty without violating the law, whether his or 4 [* 5] her release is not incompatible with the welfare of society, and whether release will deprecate the seriouSness of [the] crime as to undermine respect for [the] law @fatter of Durio v New York State Division of Parole, 3 AD3d 816 [3rd Dept., 20041, quoting Executive Law $2594 [2] [c] [A], other citations omitted). Petitioner at his parole interview did not raise any concern that the parole board had a predeterminedpolicy to deny sex offenders parole. The issue was not raised in petitioner s administrative appeal briefm2 issue is raised for the first time i this Article 78 Proceeding. The n Respondent i its Answer raises as an objection i point of law that the petitioner has waived that n n Claim. It has long been the law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law, see Watergate II At>ts.v Buffalo Sewer Auth.46 NY2d 52, (1 978); Young Men s C h r i s b A m .v Rochester PUR Waters Dist., 37 NY2d 371, (1 975). Petitioner has failed to exhaust his available administrative remedy with respect to his second cause of action. The Court has reviewed and considered petitioner s remaining arguments and contentions and finds them to be without merit. The Court findsthat the determination was not made inviolation of lawful procedure, is not affected by an error 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 nature relating to the petitioner were submitted to the Court as a part of the record. The Court, by separate order, is sealing all Petitioner s administrative Appeal Brief, respondent s Exhibit ¬3. 5 [* 6] records submitted for i camera review. n Accordingly it is ORDERED and ADJUDGED, that the petition be and hereby is dismissed, This sIconstitute the decision, order and judgment of the Court. The original M decisiodordedjudgment 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 decisiodordedjudgmentand delivery of this decisiolzlorderljudgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not reIiwed fiom the applicable provisions of that d e respecting filing, entry and notice of entry. ENTER 7 Dated: March / ,2013 Troy, New York Supreme Court Justice Papers Considered: 1. 2. 3. 4. Order To Show Cause dated September 10,2012 Verified Petition dated August 20,2012 with Exhibits Answer Dated November 5,20 12 Reply af5davit with Exhibit dated November 17,20 12 6 [* 7] STATE OF NEW YORK SUPREME COURT COUNTY OF f i B A N Y B In The Matter of the Application of FRANCIS B. FANNING, I 92-B-1827 & Petitioner, -against- ANDREA EVANS,. Respondent, For A Judgment mzrsuaxlt to ArEicle 78 of the Civil Practice Law and Rules. Supreme Court AIbany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-12-ST3975 Index No. 4945-12 SEALING ORDER The following documents having been filed by the respondent with the Court for i n camera review in connection with the above matter, namely, respondent s Exhibit C, PresentenceInvestigationReport, and respondent s Exhibit ¬?,Confidential.PofEion of Inmate Status Report, it is hereby ORDERED, that the foregoing designated documents, including all duplicates and copies thmof, shaIl be filed as sedtd instruments and not made available to any person or public or private agency unless by further order of the Court. ENTER D&d: March /? ,2013 Troy, New York - Supreme Court Justice

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