Matter of Cummings v New York State Div. of Parole Queens III Field Off.
Annotate this CaseDecided on September 11, 2013
Supreme Court, Queens County
In the Matter of the Application of Kenneth Cummings, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
against
New York State Division of Parole, Queens III Field Office, et al., Respondent.
4433/2013
Robert J. McDonald, J.
This is an Article 78 proceeding in which the petitioner, Kenneth Cummings, Pro Se, seeks an order directing the respondent, New York State Division of Parole, Queens III Field Office, to secure and approve a residence for the petitioner in order that he may be conditionally released. The New York State Division of Parole is now known as the New York State Department of Corrections and Community Supervision ("DOCCS").
Petitioner, is presently incarcerated at Otisville Correctional Facility in Otisville, New York having been sentenced in September 1995 and February 1996 in Suffolk County to an aggregate term of incarceration of 12½ to 25 years.Petitioner's convictions were based upon two separate indictments for acts that occurred between August and September 1994 when petitioner raped and sodomized four different woman on four different occasions. Petitioner was found guilty of two counts of rape in the first degree, one count of burglary in the first degree, and one count of sodomy in the first degree, all B violent felonies. At least two of the victims were under the age of 17. The petitioner has been incarcerated for approximately 18 years. According to the records of DOCCS, the petitioner's conditional release date is October 14, 2011. DOCCS has the power to conditionally release prisoners when they have met their conditional release date and have met all the imposed conditions of parole. On June 29, 2011, the petitioner signed an application for conditional release and provided a proposed residence. On October 30, 2012, petitioner appeared before the Parole Board. Thereafter, by written decision the Parole Board denied the petitioner parole release. However, Assistant Attorney General Inna Ringh states in an affirmation dated July 5, 2013, that although the Parole Board denied petitioner release, he is still eligible to be released after serving 2/3s of his maximum prison term through conditional release without Parole Board approval.
In the instant petition brought under Article 78 for a writ of mandamus, Mr. Cummings contends that the respondent has repeatedly and unreasonably failed to approve suitable residential housing submitted by the petitioner. Mr. Cummings contends that the failure of the DOCCS to act on his proposed residences has resulted in his being held in state prison beyond his conditional release date of October 14, 2011. Petitioner contends that respondent is charged with the duty and power to conditionally release particular prisoners under specified conditions. One of those conditions is that the defendant secure acceptable housing prior to being conditionally released. Petitioner asserts that the respondent, Queens III Field Office, is required to determine whether the residences proposed by the [*2]defendant are suitable.
In this regard, the petitioner alleges that he provided respondent with approximately 19 addresses of proposed residences in the New York City area. Two of the residences were the petitioner's parents. Petitioner contends that the respondent rejected the parents addresses on June 29, 2011 and rejected four others between November 7, 2011 and January 26, 2012. He states that between October 13 and February 1, 2012 seven additional proposed residences consisting of halfway houses and or treatment programs were rejected as unsuitable. Petitioner states that the remaining six proposed residences remain unchecked by the respondent and their status remains unknown without reason having been given by the respondent for not taking action.
Petitioner argues that the respondent has failed to approve a suitable residence despite the fact that adequate choices have been provided. Secondly, petitioner argues that the respondent's delay has resulted in an inordinate delay of the his release. Therefore, petitioner seeks an order from the Court to compel a more diligent effort on the part of the respondent. Petitioner states that he does not seek to compel a particular result, as same is within the discretion of the respondent, but rather, petitioner seeks to have the court compel respondent to make some determination, within a reasonable time, as to the status of the undecided proposed residences that were previously submitted. Petitioner argues that the failure of the respondent to act on his request for over a year is inherently unreasonable.
The respondent, represented by the Attorney General of the State of New York, states that the petition is moot because petitioner has already received all the relief that he has requested. Counsel states that DOCCS has considered all of the housing options proposed by the petitioner and has rejected them because they did not comply with his conditions of release. Respondent states that because the petitioner's convictions for rape in the first degree and sodomy in the first degree he is subject to New York State's Sexual Assault Reform Act ("SARA"). In addition, as the petitioner is subject to the SARA law and is a level three sex offender, a condition of his release to parole supervision requires petitioner to secure housing that is located more that 1000 feet from school grounds. Counsel asserts that the residences of petitioner's mother and father were rejected because day care facilities were located within 1000 feet of each residence. The petitioner's request for transition housing was rejected by the respondent because the predatory nature of the convictions required a more managed and secure facility. The remaining proposed residences were not approved by the respondent [*3]because they did not comply with the SARA law, did not accept sex offenders for placement, or the information provided by the petitioner was incorrect. Respondent's counsel asserts that it is lawfully within the discretion of the DOCCS to impose the special condition of securing approved housing and that the condition must be satisfied before conditional release may be granted (see Matter of Boss v New York State Div. of Parole, 89 AD3d 1265[3rd Dept. 2011]; Matter of Breeden v Donnelli, 26 AD3d 660 [2d Dept. 2006]; Matter of Lynch v West, 24 AD3d 1050 [3d Dept. 2005]; Monroe v Travis, 280 AD2d 675 [2d Dept. 2001]).
Respondent further asserts that DOCCS has met its obligation to verify, investigate and either approve or deny each potential residence proposed by the petitioner. Counsel has submitted documents which show that the petitioner's parole officer has made continuing efforts to investigate all of the proposed addresses provided by the petitioner with a view towards securing housing placement for the petitioner. Lastly, respondent has submitted documents entitled "Residential Address Inquiry Screen" for all of the residences that petitioner has proposed. The records show that all of the residences were investigated and rejected as inappropriate.
Upon review and consideration of the petition herein, respondent's affirmation in opposition, and respondent's reply thereto, this Court finds as follows:
"The action or inaction of an administrative agency may be challenged by an Article 78 proceeding seeking mandamus to compel" (NY Civil Liberties Union v State of NY, 4 NY3d 175 [2005]; Matter of Ozdoba v Chelsea Landmark LIC, LLC, 74 AD3d 555 [1st Dept 2010]). "Mandamus will only lie when it is established that some person has a clear legal right which he is entitled to enforce, and that a ministerial officer, whose duty it is to enforce the right or otherwise to act in furtherance thereof, has refused to perform his duty" Lisa v Board of Elections, 83 AD2d 949 [2d Dept. 1981]; also see Schachter v. Quinones, 140 AD2d 505 2d Dept. 1988]). It is used to enforce an administrative act positively required to be done by provision of law (Matter of Ahern v Board of Supervisors of County of Suffolk, 7 AD2d 538 542 [2d Dept. 1959] affd 6 NY2d 376 [1959]; Matter of Chessin v New York City Conciliation & Appeals Bd., 100 AD2d 297 [1st Dept. 1984]). "While mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise discretion or judgment (see Lauer v City of New York, 95 NY2d 95, 107[2000]; Klostermann v Cuomo, 61 NY2d 525 [1984]; Tango v. Tulevech, 61 NY2d 34[1983]). [*4]
Here, the petitioner states that he is not seeking to compel a particular result, only to compel the respondent to investigate his proposed residences and arrive at a determination. From the documents submitted by the respondent it now appears that the respondent has investigated all of the petitioner's proposed residences and rejected them all as not meeting the special residency restrictions of the Division of Parole and the SARA law as to appropriate housing for sex offenders to be released on conditional parole.
Therefore, for all of the above-stated reasons, this Court finds that as the respondent has investigated all of the housing options presented by the petitioner, the petitioner has failed to establish a legal right to mandamus in this matter.
Accordingly, it is hereby,
ADJUDGED and ORDERED, that the petition is denied.
Dated: September 11, 2013
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.
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