430 F.2d 403 (2nd Cir. 1970), 871, Menechino v. Oswald

Docket Nº:871, 34665.
Citation:430 F.2d 403
Party Name:Joseph MENECHINO, Plaintiff-Appellant, v. Russell G. OSWALD, as Chairman of the New York State Board of Parole, New YorkState Board of Parole, Defendants-Appellees.
Case Date:August 05, 1970
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 403

430 F.2d 403 (2nd Cir. 1970)

Joseph MENECHINO, Plaintiff-Appellant,

v.

Russell G. OSWALD, as Chairman of the New York State Board of Parole, New YorkState Board of Parole, Defendants-Appellees.

No. 871, 34665.

United States Court of Appeals, Second Circuit.

August 5, 1970

Argued June 16, 1970.

Page 404

David Rosenberg, New York City (Leonard B. Boudin, Rabinowitz, Boudin & Standard, New York City, on the brief), for plaintiff-appellant.

Hillel Hoffman, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for defendants-appellees.

Before ANDERSON and FEINBERG, Circuit Judges, and MANSFIELD, District Judge. [*]

MANSFIELD, District Judge.

This appeal by a state prisoner from a judgment of the district court dismissing his complaint under the Federal Civil Rights Law, 42 U.S.C. 1 1983, and the Declaratory Judgment Act, 28 U.S.C. § 2201, raises the question of whether a prisoner is entitled under the Fourteenth Amendment to procedural due process rights upon his being interviewed and considered by the New York State Board of Parole for release on parole before the termination of the sentence imposed by the court. For the reasons hereinafter stated we affirm the judgment below.

The essential facts are not in dispute. Appellant is imprisoned in Green Haven Prison, Stormville, N.Y., under a sentence of from 20 years to life imposed on May 6, 1947, by the New York County Court of General Sessions pursuant to his plea of guilty to the charge of murder in the second degree. After having been paroled from Attica Prison on August 14, 1963, he was declared delinquent by the Parole Board on December 31, 1964, and was returned to prison. In May 1965 he appeared without counsel before members of the Parole Board and admitted consorting with individuals having criminal records and giving misleading information to his parole officer.

Following revocation of his parole in May, 1965, appellant appeared on March 16, 1967, at a brief session before three members of the Board of Parole for reconsideration of parole release, which was denied, the Board deciding that his case would be reconsidered in 18 months. In July, 1968, appellant commenced an Article 78 proceeding in the Supreme Court, New York County, claiming that his federal and state constitutional rights had been violated by the absence of legal counsel at his May, 1965, revocation hearing, and that the March, 1967, hearing constituted cruel and unusual punishment in violation of his Eighth Amendment rights. The complaint demanded a new hearing. An initial decision in appellant's favor by the state Supreme Court on August 27, 1968, was, on June 17, 1969, reversed by the Appellate Division, First Department, which denied his application, holding that he had 'no general constitutional right to representation by counsel at the parole revocation hearing before the Board of Parole.' In the meantime, in September, 1968, appellant again appeared before the Board without counsel and was again denied parole with the proviso that his case be considered in another 18 months.

In August 1969, appellant commenced the present action in the district court, invoking its jurisdiction pursuant to 28 U.S.C. § 1331, 1343(3), 1361 and 42 U.S.C. § 1983. His complaint alleges that defendants, in violation of his constitutional rights, determined that he is

'Not qualified for release on parole, which, in effect, constitutes a denial of liberty, without adhering to the minimum requirements of procedural due process: (i) notice of charges; (ii) a fair hearing, with the right to counsel, to cross-examination and to present favorable evidence and compel the attendance of favorable witnesses; and (iii) specification of the grounds and underlying facts upon which the determination was based' (Complaint P13).

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The complaint seeks a declaratory judgment to the effect that

'plaintiff is entitled under the Due Process Clause of the Fourteenth Amendment to (i) notice of charges, including a substantial summary of the evidence and reports before the Board, (ii) a fair hearing, including the right of counsel, to cross-examination and confrontation and to present favorable evidence and compel the attendance of favorable witnesses, and (iii) a specification of the grounds and underlying facts upon which the determination is based; * * *.'

Consideration of the questions raised by appellant requires an understanding of the function and procedures of the New York Board of Parole. The Board, which consists of five members appointed by the Governor (N.Y. Executive Law, McKinney's Consol.Laws, c. 18, § 241), is required 'to personally study * * * prisoners * * * to determine their ultimate fitness to be paroled' (N.Y. Correction Law, McKinney's Consol.Laws, c. 43, § 210). Toward this purpose the members have the duty of meeting at such prisons and at such times as are necessary for a full study of the cases of prisoners eligible for release on parole and of determining 'when and under what conditions and to whom such parole may be granted' (N.Y. Correction Law § 210).

Release of a prisoner on parole in New York is done 'solely on the initiative of the board of parole' (N.Y. Correction Law § 214) and no application for parole may be made by or on behalf of the prisoner. The Board is given broad discretionary power to grant parole, not as a reward for good conduct or efficient performance of a prisoner's duties, but 'only if the board of parole is of opinion that there is a reasonable probability that, if such prisoner 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' (N.Y. Correction Law § 213). The members of the Board must also be 'satisfied that he will be suitably employed in self-sustaining employment if so released' (N.Y. Correction Law § 214).

In the case of a prisoner sentenced in New York to an indeterminate term, such as appellant, the collection of information forming the dossier used as the basis for the Board's decision commences almost immediately after he is sentenced. The Board is required to obtain 'while the case is still fresh' information as 'complete as may be obtainable' with respect to the prisoner, including a complete statement of the crime, the nature of the sentence, the names of the judge and district attorney, the probation report, and reports as to the 'prisoner's social, physical, mental and psychiatric condition and history' (N.Y. Correction Law § 211). Before the prisoner is released on parole the Board must further obtain a report from the warden of each prison in which the prisoner has been confined as to the prisoner's conduct in the institution, with a detailed statement as to any infractions of prison rules or discipline; the extent to which the prisoner has responded to efforts made to improve his mental and moral condition; his then attitude toward society, the judge who sentenced him, the district attorney who prosecuted him, and the policeman who arrested him; and his attitude toward his crime and his previous criminal career. The Board is also required to have before it a report from the superintendent of prison industries giving the prisoner's industrial record in prison, and a recommendation as to the kind of work he is best fitted to perform and at which he is most likely to succeed. Lastly, the Board must also have a report as to any physical, mental and psychological examination of the prisoner which has been made within two months of his eligibility for parole.

After a prisoner sentenced to an indeterminate term has served one year, the date when he may become eligible for release on parole is 'discretionary with the board of parole' (N.Y. Correction Law § 212). When a prisoner becomes

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eligible the Board's practice as revealed in its rules is to schedule his appearance before three or more Board members visiting the institution where he is incarcerated, at which time he is interviewed and his case considered (N.Y. Code of Rules & Regs. § 155). Rule 155.9 expressly provides:

'155.9 Attendance at hearings. Neither the inmate's attorney nor any other party will be permitted to attend or speak in person in the inmate's behalf or against him at any meeting of the Board of Parole at which the inmate's release on parole is being considered. The board shall have complete discretion with respect to the presence of any other persons at such hearings.'

Following such an interview the Board decides whether the prisoner shall be released after it has considered the various reports and factors prescribed. In addition it considers 'the environment to which he plans to return' and 'the kind of employment secured for him.' If parole is denied, the Board in its discretion may fix a future date for 'reconsideration' of the case.

The Board's exercise of this discretionary power has been held by New York's highest court to be absolute and beyond court review as long as the Board violates no positive statutory requirement. Hines v. State Board of Parole, 293 N.Y. 254, 56 N.E.2d 572 (1944); Briguglio v. New York State Board of Parole, 24 N.Y.2d 21, 298 N.Y.S.2d 704, 246 N.E.2d 512 (1969). Once released on parole the prisoner, although outside prison walls, continues to be in the legal custody of the warden of the prison from which he is released and is subject to being retaken and returned to actual custody until the expiration of the term of his sentence (N.Y. Correction Law § 213); People ex rel. Natoli v. Lewis, 287 N.Y. 478, 41 N.E.2d 62 (1942); People v. Santos, 31 A.D.2d 508, 298 N.Y.S.2d 526 (1st Dep't 1969).

The issue before us is not whether New York, instead of expressly forbidding a prisoner to be represented by counsel or by some other person before the Board of Parole, would...

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