Matter of Clark v New York State Bd. of Parole
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Matter of Clark v New York State Bd. of Parole 2018 NY Slip Op 30745(U) April 26, 2018 Supreme Court, New York County Docket Number: 160965/2017 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 04/27/2018 03:33 PM 1] NYSCEF DOC. NO. 39 INDEX NO. 160965/2017 RECEIVED NYSCEF: 04/27/2018 SUl'REJVIE COURT OFTllE STATE OF NE\V YORI< COUNTY OF NEW YORK: PART56 IN TI-IE MATTER OF THE APPLICATION OF JUD!Tll CLARK, Index No.160965/2017 Petitioner, FOR A JUDGMENT PURSUANT TO CPLR ARTICLE 78 -against- DECISION AND ORDER NE\V YORI( STATE BOARD OF PAROLE, Respondent. HON. JOHN J. KELLEY Petitioner Judith Clarl('s Article 78 petition challenging the denial of her application for parole release by Respondent New York State Board of Parole ("Parole Board") is granted. Ms. Clark is incarcerated due to a 1982 conviction based on her role as a driver i11 an arn1ed robbery of a Brinks arn1ored truck in Rocl(land County tl1at resulted in- tl1e death of three people, two of wl10111 were police officers. Considering herself a revolutionary in conflict with the goverrunent, Ms. Clark represented herself at trial a11d, in rejecti11g the cot1rt's at1thority, mounted no real defense to tl1e charges against her. Her participation at the trial was lin1ited to op_ening and closing state111ents and calling a single witness. She eve11 failed to opj)OSe the district attorney's 11eigl1tened sentence recom1nendation, thus pa\1ing the court's way to imposing three consecutive 25-years-to-life sentences. 111 sentenci11g Ms. Clark, the court expressed the view that, given 11er cri1nes a11d conduct during the trial, she was irredeen1able. By most accounts, l1owev_er, Ms. Clarl( 11as undergone a re1narkable trai1sfor111ation over the t11ree decades during which she 11as been incarcerated. Ms. Clark l1as taken responsibility for l1er actions, expressed remorse, and tried to iinprove tl1e lives of her fellow prisoners, as well as many otl1ers. In December 2016, Governor Andrew M. Cuomo granted Ms. Clai·k cle1nency 2 of 9 [*FILED: NEW YORK COUNTY CLERK 04/27/2018 03:33 PM 2] NYSCEF DOC. NO. 39 INDEX NO. 160965/2017 RECEIVED NYSCEF: 04/27/2018 based on 11er "_exceptional strides in self-development and in1proveme11t." In doing so, Governor Cuomo comn1t1ted Ms. Clark's se11te11ce by reducing its minimum ter1n to 35 years, thus making her eligible for parole for the first ti1ne in 2017. On April 5 and April 6, 2017, Ms. Clark appeared before the Parole Board for m1 interview that lasted approxi1nately eigl1t 11ours. Tl1e topics of discussio11 included all aspects of Ms. Clarie's case, sucl1as11er early life, 11er cri1ninal history, tl1e st1bject crime, 11er trial_, her se11tencing, her institutional history, and her record ofachieve1nent and service since her incarceration. On April 20, 2017, tl1e_Parole Board issued its decision denying Ms. Clark's parole application. 'fhe Parole Board acknowledged, and did not depart fro1n, Ms. Clark's favorable risk assessn1ent as documented by l1er acl1ievements, good worlc, and expressions of re1norse for her actions; nonetl1eless, tl1e Parole Board stated tl1at it "reviewed boxes of public support and boxes of opposition" and was "perst1aded against release by opposing infor111ation that includes state111ents from for1ner and curre11t officials, and statements from survivors and affected pa1iies found i11 pre-sente11ce records, sentencing 1ni11utes ai1d other public records." 111 this regard, the Parole Board stated: "We do not depart from your favorable risk assess1nent; ·however, we do find that your release at this time is incompatible \Vitl1 tl1e welfare of society as expressed directly by relevant officials and thousands of its 1nembers, and tl1at it would deprecate the seriousness of your crimes as to under1nine respect for the law. Yott are still a sy1nbol of violent and terroristic cri1ne. Perl1aps the transcript of our interview will allow patiies, whose stateme11ts we must consider, to read about yotir ongoing personal .eval uatio11 for the first time." Although the Parole Board acknowledged that Goven1or Cuomo granted Ms. Clark clemency, it secn1ed to give little weigl1t to the Gover11or's co1nmutation of her sentence in light of t11e Parole Board's assertio11 tl1at it considered substantial additional information that "was created and submitted p11rsuant to [its] unique process." 2 3 of 9 [*FILED: NEW YORK COUNTY CLERK 04/27/2018 03:33 PM 3] NYSCEF DOC. NO. 39 INDEX NO. 160965/2017 RECEIVED NYSCEF: 04/27/2018 On Dece111ber 11, 2017, Ms. Clark initiated this Article 78 proceeding, arguing that the Pm·ole Board's decision is arbitrary, capricious, and co11trary to establisl1ed law. I11 opposition, the Parole Bdard argues that it properly considered all the relevant factors that the Executive Lav-,r requires. Tl1e Executive Law enu1nerates eight statutory factors to determine whether an inmate should be released on parole, five of which are relevant to this case: "(i) th.e i11stitutional record i11cludit1g program goals and accomplishn1ents, academic acl1ievements, vocational educatio11, trai11i11g or work assign1nents, therapy and interactions with staff and i11mates; ... ; (iii) release plm1s including con1n1u11ity resources, employment, educatio11 a11d training and sttpport services available to the in1nate ... ; (v) any state1nent made to the board by the cri1ne victi1n or the victim's represe11tative, where the crime victim is deceased or is mentally or physically incapacitated ... ; (vii) tl1e seriousness of tl1e offense witl1 due consideratio11 to the type of sentence, length of sentence and recommendations of the sentencing cot1rt, the district attorney, the attor11ey for the inmate, the presentence probation repo1t as well as consideration of a11y mitigati11g and aggravating factors, and activities followi11g arrest prior to confinement; and (viii) prior criminal record, including the nature and patter11 of offenses, adjustment to any previotts probation or parole stlpervision and institutional confine1nent" (Executive Law§ 259-i [2] [c] [A]). A parole board 1nust consider all eigl1t factors, but it need not give equal weight to eacl1 factor (see Maller of King v NYS Div. o/Parale, 190 AD2d 423, 431 [1st Dept 1993], affd 83 NY2d 788 [l 994]). In addition, a parole board is obligated to ensure that only tl1e relevant guidelines and factors arc co11sidered (id. at 791). Although a parole board must co11sider the seriousness oftl1e crhne, it I11ust, nevertheless, do so in conjtmctio11 witl1 tl1e ot11er factors enu1nerated in the statute, and it nlust co11duct a risk assessment analysis to determine if an inmate 11as been rel1abilitated and is ready for release (see Executive Law§ 259-c [4J). The legislative intent bel1ind the Executive Law is to base parole board determinations on a forward-looking paradig1n, ratl1er than a backward-looking approach that focuses on the severity of the crhne (see Platten v NYS Bd of Parole, 47 Misc 3d 1059, 1062 3 4 of 9 [*FILED: NEW YORK COUNTY CLERK 04/27/2018 03:33 PM 4] NYSCEF DOC. NO. 39 INDEX NO. 160965/2017 RECEIVED NYSCEF: 04/27/2018 [Sup Ct, Sullivan Cty. 2015]). Thus, a parole board may not deny parole based solely on the seriousness of the offense (see Matter of Rossakis v J.lYS Ed. o,( Parole 1 146 AD3d 22 [1st Dept 20 l 6]; Matter of Ramirez v Evans, 118 ADJd 707 [2d Dept 2014]; Maller of Gelsomino v NYS Bd of Parole, 82 ADJd I 097, 1098 [2d Dept 2011 ]). Rather, a parole board must be guided by rislc and needs pri11ciples, -and it must explain its reasons witl1 particularity if it departs from a risk-assessment analysis. (Division of Parole Regulations§ 8002.2 [a]). If the record indicates that a parole board n1ay 11ave considered factors not pe1mitted ru1der the statute and related regulations, the court must re111and the matter for a new interview before a new parole board (King, 83 NY2d at 791). Ms. Clark asserts that the Parole Board (1) failed to abide by the statutory Executive Law factors by focusing almost exclusively on the severity ofhet crime and her conduct d1..1ring her a1Test and trial, and (2) i111properly co11sidered factors outside tl1e scope oftl1e statute and applicable regulatio11s wl1en it considered, inter alia, pe11al philosophy, the imposition of life sentences -on those convicted of n1ttrder or felony 111urder, and the consequences to society if life sentences are not imposed. U11der tl1e unique factual circumstances presented here, this court fi11ds that the Parole Board acted arbitrarily and capriciously in its determination of Ms. Clark's parole application. For instance, instead of considering the vie\vs of the sentencing court, as is required by Executive Law§ 259-i (2) (c) (A), the Parole Board impermissibly considered a letter fron1 a different jurist who sits in the Ni11tl1 Judicial District The Parole Board treated tl1is letter as if it were, from the se11tenciI1g court; however, tl1is jurist did not preside over Ms. Clark's trial or sentencing. Instead, this jurist was assigned by t11e ad1ninistrative judge to provide the "se11tencing court's" view of Ms. Clark's parole eligibility because the sentenci11gjudge -retired 4 5 of 9 [*FILED: NEW YORK COUNTY CLERK 04/27/2018 03:33 PM 5] NYSCEF DOC. NO. 39 INDEX NO. 160965/2017 RECEIVED NYSCEF: 04/27/2018 i112008. The letter, wl1ich relied 011 hearsa)' fro1n the trial judge and otl1er u11known sot1rces, strongly advocated against Ms. Clarl('s release: "[t]o release tl1is defendant now, after tl1e decades of suffering by the fmnilies of the victims, the verdict of a jury in a fair trial and the lawft1l, logical, appropriate and just sentence by the trial judge, who was conversant V.'itl1 all the facts, wot1ld 1nake· our judicial system the inockery that tl1e defendant clairhed it was all those years ago. Is it now tl1e standard that a defendant \vl10 expresses remorse after no matter how many decades and no matter how heinous the crime, should t11en qualify for release, even tl1ot1gh the harm and suffering caused by her acts still exist?" The Parole Board sl1ould not have considered this letter. The Executive Law's reference to the sentencing court's reco1nmendations means the recommendatio11s of the judge wl10 in1posed tl1e original sentence, 1101 a jurist wl10 did not participate in the original trial or sentenci11g. 111 this regard, although the sentencing judge may have retired, his opi11ion can be found in the same sentencing minutes that the Parole Board referenced in its intervie\v with Ms. Clari( and in its subsequent decision. Moreover., in light of Governor Cuo1no's grant of cleme11cy, even the sentencing judge's opinion, similar to otl1er aggravati11g circu1nstanccs fro1n decades ago, has very limited value. The Governor's decision to exercise l1is constitutional authority to grant clemency, by its nah1re, removes t11e evalt1ation of Ms. Clark's original sentence from typical Executive Law consider.ations. This is bccattse the Governor, i11 granting clemency, deter1nined that in the 35 years after Ms. Clark's sentenci11g, circun1stances developed that rendered tl1e original sentence unduly harsh, sucl1 as her remorse and rehabilitatio11, wl1icl1 arc things the sentenci11g judge could not l1ave foreseen when 11e in1posed the original 75-years-to-life sentence. Tl1is is not to say tl1at com1nuti11g Ms. Clark's sentence mini1nizes the seriousness ofl1er crimes, but it serves as a stro11g counterweigl1t to both the views of the sentencing cot1rt, as expressed over 35 years ago, and the sig11ificance of the original se11tence. 5 6 of 9 [*FILED: NEW YORK COUNTY CLERK 04/27/2018 03:33 PM 6] NYSCEF DOC. NO. 39 INDEX NO. 160965/2017 RECEIVED NYSCEF: 04/27/2018 Furtl1er, the Parole Board en·oneously considered letters that it wholesale failed to disclose to Ms. Clark i11 advance ofl1er interview or subsequent ad1ninistrative appeal. Subject to certain specific exceptions, an inmate is entitled to all the informati_on contained in his or 11er parole case record (see Division of Parole Regulations § 8000.5 [c] [1 ]). The Executive Law provides that "[w]l1ere a crin1e victim or victim's representative ... or other person submits to the parole bbard a written statement concerning the tel ease of an i11mate, t11e parole board shall keep that individual's nan1e ancf c1dclress co11fidential" (Executive Law § 259-i [2] [c] [BJ) (emphasis added). Section 259-k of the Executive Law allows the Parole Board to n1ake iules to maintain the confidentiality of sucl1 records. Under this authority, Division of Parole Regulations (9 NYCRR) § 8000.5 (c) (2) (i) (a) (3) provides that access to case records can be restricted or witl1l1eld only to the extent that tl1e records contai11 "any infonnation wl1ich if disclosed inight result in harm, physical or otherwise, to any perso11." Altl1ough the regulation provides a basis to redact or witl1hold recorcls t11at could potentially endanger so111eo11e, no evidence in t11e record suggests tl1at the Parole Board undertook any a11alysis to determine whether malci11g appropriate redactions and thereafter disclosing the substance of these letters to Ms. Clark would have har1ned anyone, let alone the con11nunity at large. L Without malcing sucl1 an analysis) it appears that the Parole Board arbitrarily decided to \Vithl1old all tl1e letters tl1at were submitted by the con1munity. Doi11g so is contrary to both the letter and tl1e spirit of the Exec11tive Law and its regulations. 1 Even if the infonnation that the Parole Board relied on could have been properly designated as confidential, the Parole Board still was required by Division of Parole Regulations § 8000.5 to notify Ms. Clark of its intent to rely on such information (see ~Vest v NYS Bd. of Parole, 41Misc3d 1214[A] [Sup Ct, Albany Cty. 2013] (holding that confidential infonnation, even when properly protected by the law, "certainly should not trun1p the statutory requirement that the [Parole] Board's decision reveal the factors and reasons it considered in reaching its decision, particularly \Vhen such consideration is mandated by statute"); Matter ofAl111onor v NYS Bd ofParole, 16 Misc 3d 1L26[A] [Sup Ct, NY Cty. 2007] ("Even though, on so1ne occasions, 9 NYCRR 8000.5 allows respondent to consider 1nateria!s ... protected from a parole applicant's review, respondent would not have the right to keep the fact of their consitjeration secret fro1n the applicant"). 6 7 of 9 [*FILED: NEW YORK COUNTY CLERK 04/27/2018 03:33 PM 7] NYSCEF DOC. NO. 39 INDEX NO. 160965/2017 RECEIVED NYSCEF: 04/27/2018 As it stands, the Parole Board's decision provides few specifics about the details or content of the letters. For example, the Parole Board indicated tl1at it co11sidered a stro11g letter in opposition fro1n a legislative body that sits n1orc· than 300 n1iles away fro1n botl1 tl1e place of the cri1ne and tl1e cttrrent location of Ms. Clark's it1carceration. Such a letter, se11t to the Parble Board in what onl)' can be presu1ned as being in an ·official capacity, should fall Otttside the scope of reasonable comn1unity opposition~ yet, the Parole Boa.rd read it into the record ru1d appeared to have given it seriot1s weight, nonetheless (see Appendix 168-169). Further1nore, at a 1ninin1um, tl1e Parole Board has. 1101 explained why the n1n11erous letters of support fl·o1n those wl10 personally know Ms. Clark are outweighed by the opposition letters subn1itted by tbe community. The Parole Board must be careful not to be S\Vayed by appeals that include considerations outside t11e sco1)e of t11e factors outlined in the Executive Law (see e.g. King, 83 NY2d at 791 ). Without the co11rt ki1owi11g the substru1ce of tl1ese letters, the Parole Board's own words and stated relia11ce on letters fro1n public officials and others opposed to Ms. Clark's release strongly signals tl1at the Parole Board considered factors that are. i1npermissible 11nder the statute, sucl1 as penal philosophy. As a result, tl1is court finds.1l·on1 this record that the Parole Board's decision was arbitrary, capricious, and contrary to law. Accordingly, it is hereby ORDERED that the petition is gra11ted to the exte11t of setti11g aside the determinatio11 by t11e Parole Board denying Ms. Clark's parole; a11d it is fl1rther, ORDERED that t11e matter .is remitted to the respondent for a ne\v i11terview before a 11ew panel of the Parole Board; and it is fu11her, 7 8 of 9 [*FILED: NEW YORK COUNTY CLERK 04/27/2018 03:33 PM 8] NYSCEF DOC. NO. 39 INDEX NO. 160965/2017 RECEIVED NYSCEF: 04/27/2018 ORDERED that said interview must be conducted within 60 days of the date of this court's decision and order, and the Parole Board is directed to issue a parole decision within 30 days of the date of that interview. Dated: April 26, 2018 ENTER 8 9 of 9
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