Matter of Hanna v New York State Bd. of Parole

Annotate this Case

Download PDF

Matter of Hanna v New York State Bd. of Parole 2018 NY Slip Op 31019(U) May 29, 2018 Supreme Court, New York County Docket Number: 150140/18 Judge: Carol R. Edmead 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 05/30/2018 12:17 PM 1] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 35 --------------------------------------------------------------------)( In the Matter of the Application of GAIL HANNA, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules Index No.: 150140118 DECISION/ORDER -againstNEW YORK STATE BOARD OF PAROLE, Respondent. --------------------------------------------------------------------)( HON. CAROL R. ED MEAD, JSC: In this Article 78 proceedi~g, petitioner Gail Hanna (Hanna) seeks a judgment to overturn an order of the respondent New York State Board of Parole (Parole Board) as arbitrary and capricious (motion sequence number 001 ). For the following reasons, this petition is denied. FACTS On October I 0, 1995, Hanna was convicted via plea bargain of the crimes of second degree murder (Penal Law § 125 .25 [I]), and second degree criminal possession of a weapon (Penal Law§ 265.03). See respondent's mem oflaw, exhibit A. She received an indeterminate sentence of 20 years to life, and was incarcerated at the Bedford Hills Correctional Facility until 2010, when she was transferred to the Taconic Correctional Facility, where she now resides. See petition,~~ 21-22. Hanna is currently 68 years of age. Id.,~ 9. On January 10, 2017, Hanna appeared at a hearing before the Parole Board to petition for her release from confinement. See petition,~ 33. The Parole Board denied her petition, but directed that she could renew it in January 2019 (the Parole Board decision). Id.; exhibit A. On May 17, 2017, Hanna filed an administrative appeal of the Parole Board's denial. Id.; 2 of 15 petition,~ [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 2] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 44. On September 11, 2017, the Parole Board Commissioner's Office issued a decision that denied Hanna's administrative appeal (the Commissioner's decision). Id.; petition, ii 45. The relevant portions of the Commissioner's decision will be quoted later, since it is rather lengthy Id.; exhibit R. In any case, Hanna thereafter commenced this Article 78 proceeding to overturn the Commissioner's decision as arbitrary and capricious (motion sequence number 001). DISCUSSION The standard of review that governs an Article 78 challenge to a Parole Board determination is more stringent than that which is normally applied in Article 78 proceedings. The Court of Appeals unequivocally states that "[i]n New York, the Parole Board holds the power to decide whether to release a sentenced prisoner on parole," not the courts, and that, as a result, "[j]udicial intervention is warranted only when there is a 'showing of.irrationality bordering on impropriety."' Silmon v Travis, 95 NY2d 4 70, 4 76 (2000). Here, after thoroughly reviewing the record, the court finds that the petitioner has not made such a showing. Executive Law (Exec Law)§ 259-i governs the "[p]rocedures for the conduct of the work of the state board of parole," and provides, in pertinent part, as follows: "Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is ·not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law. In making the parole release decision, the procedures. adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article shall require that the following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interactions with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; 2 3 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 3] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 (iv) any deportation order issued by the federal government against the inmate while in the custody of the department and any recommendation regarding deportation made by the commissioner of the department pursuant to section one hundred forty-seven of the correction law; (v) any current or prior statement made to the board by the crime victim or the victim's representative, where the crime victim is deceased or is mentally or physically incapacitated; (vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the penal law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law; (vii) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest prior to confinement; and (viii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement .... " Exec Law§ 259-i (2) (c) (A). Here, Hanna's counsel raise five arguments that the Parole Board violated the foregoing statutory procedures when it rendered its September 11, 2017 decision. The court will review each argument in turn. First, counsel for Hanna asserts that "the Parole Board abused its discretion and violated lawful procedures by relying on erroneous information regarding [petitioner's] record." See petitioner's mem oflaw at 7-14. Counsel avers that this "erroneous information" consists of non-existent "letters of opposition" to Hanna's parole application that one of the Parole Board Commissioners referred to at Hanna's January 10, 2017 hearing. Id. Counsel specifically objects that the sole "letter of opposition" was, in fact, a November 24, 1995 Jetter that the Warren County District Attorney's Office prepared shortly after Hanna was originally sentenced, and asserts that neither the Warren County District Attorney, the DOC or any other official actually submitted any new "letters of opposition" to her 2017 parole application, despite the Commissioner's apparent claim to the contrary. Id. The court notes that counsel raised this same 3 4 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 4] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 argument at Hanna's September 11, 2017 administrative appeal, and that the Commissioner's Office decision disposed of it in the following excerpt: "Appellant's first contention is that the Board relied on erroneous information, arguing that a commissioner's reference to letters of opposition from 9fficial sources received in response to inquiries from DOCCS amounts an error requiring a de novo interview. While appellant is correct that the reliance on erroneous information may provide grounds for appeal (see 9 NYCRR § 8006.3[a); see e.g., Matter of Plevy v Travis, 17 AD3d 879, 880 [3d Dept 2005]), the mere presence of erroneous information, without any indication it was relied upon in the determination, is insufficient to require the decision be vacated (see Matter of Restivo v New York State Board of Parole, 70 AD3d 1096, 1097 [3d Dept. 201 O]). This is so even where the erroneous information amounts to an inaccurate statement by a member of the Board during the interview not relied upon in the decision (see Matter of Gordon v Stanford, 148 AD3d 1502, 1503 [3d Dept 2017]; Matter of Khatib v New York State Bd. of Parole, 118 AD3d 1207, 1208 [3d Dept 2014]). "The record reflects that the Board did not rely on erroneous information in rendering its decision. The Board is required to consider any recommendation from the prosecutbr, which in the case of appellant, was the Warren County District Attorney (see Executive Law §259-i [2] [c] [A] [vii]). The Board received a letter from the office of this District Attorney which the Board then considered as required by law (see id.). Although appellant refers to an email from an attorney in the office of Counsel to the Department of Corrections and Community Supervision ('DOCCS') to support her claim that no correspondence from the District Attorney or sentencing court was received by the Board, the full text of the email included as an exhibit in the brief on appeal reflects the opposite, noting that in 1995 the Board received a letter from the Warren County District Attorney's Office. That the Board may have been mistaken as to whether this letter was sent in response to the 2014 request does not alter the Board's obligation to consider it. Nor is the reference during the interview to 'letters' in the plural an error requiring the determination be vacated; while the commissioner may have misspoken during the interview, the decision itself accurately describes 'official opposition', (see Matter a/Gordon, 148 AD3d at 1503). "Notably, there is no indication or allegation that the letter from the District Attorney contains a factual inaccuracy. Thus, appellant's reliance on Matter of Comfort is misplaced; in that case, unlike here, the letters of opposition at issue contained a factual misrepresentation as to the nature of the instant offense (see Matter of Comfort v New York State Bd. of Parole, 101 AD3d 1450, 1451 [3d Dept. 2012] ['Given this misrepresentation regarding petitioner's 4 5 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 5] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 convictions, and it appearing that the 'significant' letters in opposition to petitioner's release were prompted by the erroneous characterization of petitioner's conviction, it was error for the Board to credit those tainted letters')). Consequently, appellant has not shown that she was prejudiced by any consideration of inaccurate information by the Board (see Matter of Gordon v Stanford, 148 AD3d at 1503 ). " . See petition, exhibit R. In this portion of its decision, the Parole Board Commissioner's Office correctly noted that Exec Law §259-i (2) (c) (A) (vii) requires the Parole Board to assess "the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the ... district attorney, ... as well as ... any mitigating and aggravating factors, and activities following arrest prior to confinement" when reviewing a parole request. The Commissioner's office also found that the Parole Board had done so, because it indirectly referred to the Warren County District Attorney's November 24, 1995 letter at Hanna's January 10, 2017 hearing. The Commissioner's Office. further found that that letter contained no "erroneous information" itself, and noted_ that the "error" Hanna complained of appeared to be the fact that no f!eW "letters of opposition" had been generated for submission at her 2017 parole hearing. Finally, the Parole Board Commissioner's Office found that, in such circumstances, controlling case law holds that consideration of such a letter is both required and permissible. . . Having reviewed the record and the above-cited precedent, the court finds that the Commissioner's office reasonably_ interpreted both the facts and the law. In her reply papers, . Hanna nevertheless objects that she "preserved her claim that the ( 1995 letter) does not constitute \ official opposition" to her parole application, and that, as of today, "no official opposition exists." See petitioner's reply mem at 4-5. Hanna cites Matter of Gordon v Stanford (148 AD3d 1502, 1503 (3d Dept 2017)) to support her position. However, the Parole Board Commissioner's 5 6 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 6] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 Office previously found that that decision was not on point, either factually .or on the law. Upon reviewing that holding, the court agrees with the Parole Board Commissioner's Office's. Gordon Co is distinguishable because it involved a glaring factual inaccuracy about the circumstances of a fatal shooting, and does not involve "official opposition" letters to a parole request, at all. Therefore, Gordon is not on point and does not support Hanna's position. As a result, there is no justification for the court to alter the Commissioner's finding, that the Parole Board did not rely on "erroneous information," on the ground that this finding was an act of "irrationality bordering on impropriety." It was not. That finding was, instead, entirely reasonable. Therefore, the court rejects Hanna's first argument. Next, counsel for Hanna argues that "the Parole Board impermissibly relied on the Commissioners' erroneous personal beliefs" at the January 10, 2017 hearing. See petitioner's mem oflaw at 14-24. Hanna specifically objects to the Parole Board's alleged reliance on its "personal beliefs" about three matters: 1) Hanna's "domestic abuse history; 2) Hanna's "mental health;" and 3) Hanna's "crime." Id. at 15. The court notes again that the Commissioner's decision previously addressed these arguments. With respect to the first, Hanna's mental health, the Commissioner's decision stated as follows: "Appellant next contends that the Board improperly based its decision on personal opinions, namely opinions regarding appellant's mental health and her description of her relationship with the victim as abusive. Although the Board may not consider factors 'outside the scope of the applicable statute,' the transcript and decision do not reflect that the Board's determination was based upon such non-statutory factors. (Matter of King, 83 NY2d 788). The record reflects that appellant's allegations of abuse by the victim and their impact upon her mental state were inseparable from her explanation of why she committed the instant offense; namely, that she killed the victim in the spur of the moment because she feared his response to the imminent discovery of their financial straits and that this fear was premised upon abuse perpetrated by th.e victim. Given the required 6 7 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 7] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 consideration of the severity of the offense and the importance the Court of Appeals has ascribed to assessing an inmate's remorse and insight in evaluating an inmate's rehabilitation, this consideration was entirely proper. (see Matter of Silmon, 95 NY2d at 4 77). "Appellant's argument that consideration of appellant's mental health history was inappropriate is unpersuasive. The Board is expressly required to consider an . inmate's 'institutional record including ... therapy' (Executive Law §259-i [2] [c] [A] [i]) and an inmate's mental health, including his or her history of mental illness and treatment, has been repeatedly found to be a proper subject for Board consideration, (see e.g. Matter ofGssime v New York State Div, of Parole, 84 AD3d 1630 [3d Dept], lv. dismissed, 17 NY3d 847 [2011] ['Board also took into account the mental health assistance provided to him during his incarceration']; Matter of Dudley v Travis, 227 AD2d 863 [3d Dept 1996] ['prior history of mental illness' appropriate consideration]; Matter of Baker v Russi, 188 AD2d 771 [3d Dept 1992] [Board considered 'apparent need for psychological counseling']). "While appellant argues that the Board discussion of her mental health history amounted to an improper diagnosis by someone who is not a mental health professional, the record reflects that the Board made no such diagnosis. The Board's inquiry was based on information in the PreSentence Investigation Report (the 'PSI Report'), which the Board is required to consider (see Executive Law§ 259-i [2] [c] [A] [vii]). Appellant's reliance on People v Irwin (19 Misc3d l l l 8[A] [Onondaga Co Ct 2008]) is misplaced; that case addressed the suitability of material for inclusion in a PSI Report, not its consideration by the Board. Once material is properly included in the PSI Report, which the Board is required by Executive Law§ 259-i (2) (c) (A) (vii) to consider, it may be relied upon by the Board (see Matter of Carter v Evans, 81AD3d1031, 1031-32 [3d Dept 2011]) and appellant may not collaterally challenge its veracity in a parole interview (see Matter of Delrosario v Stanford, 140 AD3d 1515 [3d Dept 2016])." See notice of motion, exhibit R. In Hanna's motion, counsel avers that it "does not challenge the holdings of[the above cited case law], but emphasizes that the Board ... did more than simply consider the facts surrounding Hanna's mental health; it inserted unfounded medical opinions into the parole interview based on the commissioners' unqualified personal beliefs." See petitioner's mem of law at 19. However, this assertion is flatly contradicted by the portion of the Commissioners' decision which found that the administrative record showed that the Parole 7 8 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 8] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 Board relied solely on the medic;al opinions contained in Hanna's PSI report, rather than its own purportedly "unfounded medical opinions." Having itself reviewed both the PSI report, and the II transcript of the parole Board's questioning at the January 10, 2017 hearing, the court agrees that the commissioners' questions were, indeed, apparently drawn verbatim from the diagnoses contained in the PSI report. See petition, exhibit A; respondent's mem oflaw, exhibit A (in camera review only). As a result, the court finds that the Commissioner's finding, that the Parole Board "made no such [improper medical] diagnosis" in its initial determination, was a reasonable, amply supported finding. Again, it was not an act of "irrationality bordering on impropriety" that would warrant disturbing that finding. Therefore, the court rejects Hanna's "unfounded medical opinions" argument. Counsel for Hanna also avers that "the Board impermissibly relied on the commissioners' inaccurate personal beliefs about domestic abuse." See petitioner's mem of law at 19-24. Counsel here made three specific complaints, including that: I) "first, the Board inappropriately inferred that [Haima's] history of abuse has not been addressed and that she needs further mental health services"; 2) "second, the Board improperly based its decision on the commissioners' beliefs that, if [the decedent] had truly been emotionally abusive to [Hanna], she would have left him or sought help from her children;" and 3) "third, the Board also improperly relied on its personal beliefs that [Hanna] had a non-abusive relationship with [her victim]." Id., at 20, 22. In its September I I, 20 I 7 decision, the Commissioner's Office addressed these three contentions, . and made the following findings: "Contrary to.appellant's assertion, the Board properly considered her allegations of abuse by the victim and their effect upon her mental state. Assessing the veracity of these allegations amounts to a credibility determination within the 8 9 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 9] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 Board's discretion (see Matter ofSiao-Pao v Dennison, 51AD3d105, 108 [ls1 Dept 2008], afld, I I NY3d 777 [2008]). The transcript reflects that appellant initiated the discussion of abuse in her relationship with the victim in response to an inquiry about the commission of the instant offense and that her parole packet included a statement describing the role of abuse in the commission of the crime. Given the prominence of these allegations of abuse in appellant's own account of her crime, the Board's resulting inquiry into the effect upon her mental health and her mental state at the time of the instant offense was within the scope of the statute, (see Matter of Dudley, 227 AD2d 863; Matter of Baker, 188 AD2d 771; compare Matter of King, 83 NY2d 788). "Moreover, the record reflects that the Board's inquiry was directed towards assessing.her claim that the instant offense was not premeditated. As an inmate's remorse and insight into their commission of the instant offense is highly relevant to the Board's evaluation of rehabilitation, this inquiry was entirely proper, (see Matter ofSilmon, 95 NY2d at'477). While appellant indicated in the interview that the murder was an unplanned, impulsive act based upon her fear of the victim, this was contradicted by statements made by the prosecutor during her sentencing hearing arguing that she had, in fact, planned the murder ahead of time, citing arrangements made by appellant prior to the murder, including suspending her mail, as well as the allegation that she had previously attempted to ki.11 the victim discussed in the interview. Resolving these conflicting accounts amounted to a credibility determination within the Board's purview (see Matter of Siao-Pao, 51 AD3d at 108)." See notice of motion, exhibit R. Counsel for Hanna nonetheless contends that the Commissioner's interpretation of the Appellate Division, First Department's holding in Matter of Siao-Pao v Dennison (5 I AD3d I 05 [I st Dept 2008], affd I I NY3d 777 [2008]) was misplaced. See petitioner's mem of law at 23-24. They specifically argue that the Parole Board's discussion of domestic abuse with Hanna at her January I 0, 20 I 7 hearing was not "a fact driven inquiry like the one found in [Siao-P_ao ],"because the Parole Board "made statements that contradicted the evidence in the record, revealing that the Board was doing much more than assessing the veracity of her claims of abuse." Id. (emphasis in original). However, the court has reviewed both the administrative record and the transcript of the January I 0, 20 I 7 hearing, and has not discovered 9 10 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 10] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 any such "contradictions." Instead, counsel appears to have inferred the existence of these alleged contradictions from the wording of the Parole Board's questions. By contrast, the Commissioner's office noted that Hanna herself had initiated the colloquy with the Parole Board commissioners on the topic of domestic abuse, and that the Board members had restricted their ensuing questions to matters that were contained in Hanna's PSI and the other material in the administrative record. By failing to offer either factual evidence of their purported "contradictions," or to identify legal grounds for their apparent inference that the Parole Board had made any such "contradictions," counsel for Hanna have failed to demonstrate that the Commissioner made an improper determination about the Parole Board's handling of the domestic abuse questioning. Therefore, the-court rejects Hanna's "domestic abuse" argument. As was previously noted, Hanna's second, "personal beliefs" argument, specified three matters about which counsel found Parole Board questioning objectionable. The third of these was the Parole Board's alleged reliance on its "personal beliefs about her ... crime." See petitioner's mem of law at 15. However, Hanna's memorandum of law is devoid of argument on this point. As a result, the court deems that Hanna has abandoned this portion of her second argument (although she does raise apparently related arguments in other portions of her memorandum). Therefore, the court rejects Hanna's second argument in full. Next, counsel for Hanna argues that ''the Parole Board violated lawful procedure by failing to meaningfully consider the required statutory factors." See petitioner's mem of law at 24-30. To recount, Exec Law§ 259-i (2) (c) (A) enumerates the eight factors to be considered: (1) the inmate's institutional record; (2) the inmate;s performance in a temporary release program; (3) the inmate's release plans; (4) any federal deportation order issued against the 10 11 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 11] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 inmate; (5) any current or prior statement made to the board by the crime victim; 6) the length of the determinate sentence to which the inmate would be subject; (7) the seriousness of the . offense; and (8) the inmate's prior criminal record. Counsel for Hanna argues that, at the January IO, 2017 hearing, the Parole Board: I) gave inadequate consideration to Hanna's institutional record; 2) gave undue consideration to Hanna's offense; and 3) gave inadequate weight to Hanna's COMP AS score. See petitioner's mem of law at 24-30. The Commissioner's office reviewed this argument at Hanna's September 11, 2017 administrative appeal hearing, whereupon it found as follows: "Appellant's next contentions, that the Board failed to properly consider factors weighing in favor of release and instead denied parole based upon the severity of the offense alone, are without merit. The record reflects that the Board considered, in addition to the severity of the offense, appellant's release plans, disciplinary history, programming and vocational achievements, her parole packet, which included her statement of remorse and letters in support ofrelease, the COMP AS risk and needs assessment administered by DOCCS, and the minutes from her sentencing hearing (during which the Court stated that appellant should 'receive a greater sentence than that which has been agreed upon between the District Attorney's office and the families of both Mr. Rubel and Ms. Hanna'), as well as the previously discussed official opposition and mental health status. Additionally, at the end of the interview, appellant was given an opportunity to make a statement and she declined to address any other factors. "Thus, the record reflects that the Board properly considered factors weighing in favor of release. That the Board may have accorded more weight to the severity of the offense does not render the decision infirm. It is well settled that the weight to be accorded each of the requisite factors is within the discretion of the Board, (see e.g. Matter of King v Stanford, 137 AD3d 1396 [3d Dept 2016]; Matter of Delacruz vAnnucci, 122 AD3d 1413, [4th Dept 2014]). The Board is neither required to place equal emphasis on each factor (see Matter of Martinez v Evans, I 08 AD3d 815, 816 [2d Dept. 2013]; Matter of Comfort v New York State Div. of Parole, 68 AD3d 1295, 1296 [3d Dept 2009]) nor required to place more emphasis on appellant's achievements and rehabilitative successes than on the severity of the offense (see Matter of Moore v New York State Bd. of Parole, 137 AD3d 1375 [3d Dept. 2016]). Thus the Board's consideration of the severity of the offense was not improper (see Matter of LeGeros v New York State Bd. of 11 12 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 12] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 Parole, 139 AD3d 1068, 1069 [2d Dept. 2016])." See petition, exhibit R. In Hanna's petition, counsel cite a quantity of case law in which Parole Board denials were overturned because the Board's decisions were overly reliant on the "seriousness of the offense" factor, while they merely mentioned the "institutional record" factor and the other factors in passing. See, e.g., Matter of Ramirez v Evans, 118 AD3d 707 (2d Dept 2014); Matter of Perfetto v Evans, 112 AD3d 640 (2d Dept 2013); Matter of King v New York State Div. of Parole, 190 AD2d 423 (1 :1 Dept.1993), affd 83 NY2d 788 (1994). Counsel urges that the Commissioner's office should have applied this line of case law to Hanna's parole application, rather than the precedent that it relied on in the September 11, 2017 administrative appeal decision, because the Parole Board's January 10, 2017 decision did just that. See petitioner's mem of law at 24-30. The court disagrees. All of the case law that Hanna's counsel cited involved parole Board decisions that - in addition to overemphasizing the "seriousness of the offense" factor and merely mentioning the other factors in passing - were "set forth in conclusory terms, which is contrary to law." Matter of Ramirez v Evans, 118 AD3d at 707 [emphasis added]. When a decision contains these three features, a court may justly infer that the Board has ignored its duty to consider all of the statutory release factors set forth in Exec Law § 259-i (2) (c) (A), and simply given undue weight to the seriousness of an inmate's offense. However, the instant January 10, 2017 Parole board decision cannot be characterized as "conclusory." Instead, it is apparent that the Board observed a worrisome qisconnect between the overall picture of stability that is presented by Hanna's positive institutional record and COMP AS Risk and Needs Assessment score, etc., and her own, Jess positive self-evaluation. See petition, exhibit A. It is evident that this Board did not ignore the other parole determination 12 13 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 13] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 factors set forth in Exec Law§ 259-i (2) (c) (A) in favor of the "seriousness of the offense" factor, but rather that the Board accorded that factor greater weight after considering them all. The Commissioner's office was correct to note that the applicable case law accords the Parole Board the discretion to proceed in this manner. See e.g. Matter of Moore v New York State Bd. of Parole, 137 AD3d 1375, 1376 (3d Dept 2016). As a result, the Commissioner's office's determination of the "statutory factors" argument was arrived at reasonably, in accordance with the law, and dis not constitute an act of "irrationality bordering on impropriety." Therefore, the court rejects Hanna's third argument. Next, counsel for Hanna argues that "the Parole Board's decision was arbitrary and capricious because it gave impermissible weight to the seriousness of the crime." See petitioner's mem of law at 30-35. However, the court has already rejected this contention for the reasons set forth above, Therefore, the court also rejects Hanna's fourth argument for those same reasons. Finally, counsel for Hanna argues that "the Parole Board's decision was unlawful because it failed to explain its denial in detailed and non-conclusory terms, and its determination is not supported by the record." See petitioner's mem oflaw at 36-39. However, as was discussed above, "conclusory" is an inaccurate characterization of the Parole Board's January 10, 2017 determination. Therefore, the court rejects Hanna's fifth argument. Accordingly, having found that none of her arguments are meritorious, the court finds that the Commissioner's decision was not "arbitrary and capricious," and that Hanna's Article 78 petition should be dismissed. DECISION ACCORDINGLY, for the foregoing reasons it is hereby 13 14 of 15 [*FILED: NEW YORK COUNTY CLERK 05/30/2018 12:17 PM 14] NYSCEF DOC. NO. 54 INDEX NO. 150140/2018 RECEIVED NYSCEF: 05/30/2018 ADJ(JDGED that the petition of for relief, pursuant to CPLR Article 78, of petitioner Gail Hanna is denied, and the petition is dismissed. And it is further ORDERED that counsel for Petitioner shall serve a copy of this Order with Notice of Entry within twenty (20) days of entry on counsel for Respondent. Dated: New York, New York May 29, 2018 ENTER: .~If'~ Hon. Carol R. Edmead, JSC HON. CAR.OL R. EDIViEAD J.S.C. 14 15 of 15

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.