Applewhite v. N.Y.S. Bd. of Parole, 526646

• Decision Date: 27 December 2018
• Docket Number: 526646
• Citation: 167 A.D.3d 1380,91 N.Y.S.3d 308
• Parties: In the Matter of Keith APPLEWHITE, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 1380

91 N.Y.S.3d 308

In the Matter of Keith APPLEWHITE, Appellant,

v.NEW YORK STATE BOARD OF PAROLE, Respondent.

526646

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 3, 2018

Decided and Entered: December 27, 2018

MEMORANDUM AND ORDER

Egan Jr., J.Appeal from a judgment of the Supreme Court (Schick, J.), entered March 26, 2018 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying his request for parole release.

In 1991, petitioner was convicted of murder in the second degree and criminal possession of a weapon in the second degree. He was sentenced to an aggregate term of 25 years to life in prison. In January 2017, he made his third appearance before respondent seeking to be released to parole supervision. Respondent denied his request and ordered him held for an additional 24 months. The denial was affirmed on administrative appeal, and petitioner commenced this CPLR article 78 proceeding challenging it. Following joinder of issue, Supreme Court dismissed the petition. Petitioner now appeals, and we affirm.

Executive Law article 12–B establishes the procedure for affording inmates discretionary release and sets forth criteria that respondent must consider in determining whether to grant release on parole. Upon review, so long as respondent complied with the statutory requirements set forth in Executive Law § 259–i, its parole release decision will not be disturbed (see Matter of Pedraza v. New York State Bd. of Parole , 166 A.D.3d 1194, 1194, 86 N.Y.S.3d 666, 667 [2018] ; Matter of Robinson v. New York State Bd. of Parole , 162 A.D.3d 1450, 1451, 81 N.Y.S.3d 235 [2018] ). Discretionary release to parole supervision is not to be granted as a reward for good behavior while in prison; rather, respondent must consider whether "there is a reasonable probability that, if such inmate is released, he [or she] will live and remain at liberty without violating the law, and that his [or her] release is not incompatible with the welfare of society and will not so deprecate the seriousness of his [or her] crime as to undermine respect for law" ( Executive Law § 259–i[2][c][A] ; see Matter of King v. New York State Div. of Parole , 83 N.Y.2d 788, 790, 610 N.Y.S.2d 954, 632 N.E.2d 1277 [1994] ; Matter of Vaello v. Parole Bd. Div. of State of N.Y. , 48 A.D.3d 1018, 1019, 851 N.Y.S.2d 745 [2008] ). In making this determination, respondent must also consider other statutory factors, such as the inmate's institutional record – including program goals and accomplishments, academic achievements, vocational education and training and work assignments – as well as the inmate's postrelease plans, the seriousness of the inmate's underlying offense, the inmate's prior criminal record (see Executive Law § 259–i[2][c][A][i], [iii], [vii], [viii] ; 9 NYCRR former 8002.3[a][1], [3], [7], [8] ) and the COMPAS Risk and Needs Assessment instrument (see Executive Law § 259–c [4 ]; Matter of Applegate v. New York State Bd. of Parole , 164 A.D.3d 996, 997, 82 N.Y.S.3d 240 [2018] ; Matter of Hill v. New York State Bd. of Parole , 130 A.D.3d 1130, 1131, 14 N.Y.S.3d 515 [2015] ).¹ Importantly, Executive Law § 259–i(2)(c)(A)"does not purport to define the exclusive universe of all information which may be considered" by respondent ( Matter of Grigger v. New York State Div. of Parole , 11 A.D.3d 850, 852–853, 783 N.Y.S.2d 689 [2004] [emphasis omitted], lv denied 4 N.Y.3d 704, 792 N.Y.S.2d 1, 825 N.E.2d 133 [2005] ). Further, respondent is not required to articulate every statutory factor that it considered, nor must it give each factor equal weight, as long as the record demonstrates that respondent considered the appropriate statutory factors in rendering its determination (see Matter of Beodeker v. Stanford , 164 A.D.3d 1555, 1556, 82 N.Y.S.3d 669 [2018] ; Matter of Arena v. New York State Dept. of Corr. & Community Supervision , 156 A.D.3d 1101, 1101, 65 N.Y.S.3d 471 [2017] ).

Contrary to petitioner's contention, we do not find that respondent's consideration of certain unspecified "consistent community opposition" to his parole release was outside the scope of the relevant statutory factors that may be taken into account in rendering a parole release determination (see Executive Law § 259–i ). As relevant here, Executive Law § 259–i specifically contemplates that community members are free to express their opinion to respondent regarding the potential release of inmates on parole (see Executive Law § 259–i[2][c][B] ; 9 NYCRR 8000.5 [c][2] ). Specifically, Executive Law § 259–i(2)(c)(B) provides, in relevant part, that "[w]here a crime victim or victim's representative ... or other person submits to [respondent] a written statement concerning the release of an inmate, [respondent] shall keep that individual's name and address confidential" (emphasis added). The corresponding regulation governing parole records demonstrates why limiting access to information and protecting confidentiality in such a manner is paramount; such limitations are essential in order to, among other things, "protect the internal process by which division [of parole] personnel assist [respondent] in formulating individual decisions with respect to inmates and releasees" and "to permit private citizens to express freely their opinions for or against an individual's parole" ( 9 NYCRR 8000.5 [c][2]; see Matter of Jordan v. Hammock , 86 A.D.2d 725, 725, 447 N.Y.S.2d 44 [1982], appeal dismissed 57 N.Y.2d 674, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [1982] ; see also Matter of Grigger v. New York State Div. of Parole , 11 A.D.3d at 852–853, 783 N.Y.S.2d 689 ). By statutorily protecting the confidentiality of those members of the community – in addition to the crime victim or victim's representative – who choose to express their opinion, either for or against, an inmate's bid to obtain parole release, the Legislature demonstrated a clear intent that such opinions are a factor that may be considered by respondent in rendering its ultimate parole release decision. Significantly, such statements and opinions are germane to respondent's determination as to whether an inmate will live and remain at liberty without violating the law, whether such release is compatible with the welfare of society and whether an inmate's release will deprecate the seriousness of the underlying crime as to undermine respect for the law – statutory factors that respondent must consider in rendering its parole release determinations (see Executive Law § 259–i[2][c][A] ; Matter of Clark v. New York State Bd. of Parole , 166 A.D.3d 531, 531–32, 89 N.Y.S.3d 134, 2018 N.Y. Slip Op. 08071, *1 [2018] ).²

Further, in addition to consideration of expressions of both community support and community opposition, respondent considered all of the requisite statutory factors, such as the serious nature of petitioner's crimes, his lack of criminal history, his positive program and vocational accomplishments, his relatively clean prison disciplinary record, his postrelease plans and his low score on the COMPAS Risk and Needs Assessment instrument (see Matter of Applegate v. New York State Bd. of Parole , 164 A.D.3d at 997, 82 N.Y.S.3d 240 ; Matter of Hill v. New York State Bd. of Parole , 130 A.D.3d at 1131, 14 N.Y.S.3d 515 ). Although respondent evidently placed greater emphasis on the seriousness of petitioner's offenses and the "consistent community opposition" to his release on file, it also considered positive factors weighing in favor of petitioner's release, and there is no indication that its denial of parole release relied on any incorrect or inappropriate information. Upon our review of the record, therefore, we are satisfied that respondent considered the appropriate statutory factors and sufficiently set forth its reasoning in denying petitioner's application for parole release (see Matter of Betancourt v. Stanford , 148 A.D.3d 1497, 1498, 49 N.Y.S.3d 315 [2017] ), and that said determination did not evince any " ‘irrationality bordering on impropriety,’ " nor was it arbitrary and capricious ( Matter of Silmon v. Travis , 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000], quoting Matter of Russo v. New York State Bd. of Parole , 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225 [1980] ; see Matter of Boccadisi v. Stanford , 133 A.D.3d 1169, 1171, 20 N.Y.S.3d 477 [2015] ; Matter of Hamilton v. New York State Div. of Parole , 119 A.D.3d at 1273–1274, 990 N.Y.S.2d 714 ; see also Matter of Clark v. New York State Bd. of Parole , 166 A.D.3d at 531–32, 89 N.Y.S.3d 134, 2018 N.Y. Slip Op. 08071 at *1 ; compare Matter of Comfort v. New York State Bd. of Parole , 101 A.D.3d 1450, 1450–1451, 956 N.Y.S.2d 338 [2012] ). Accordingly, we find that Supreme Court properly dismissed petitioner's CPLR article 78 proceeding.

Lynch and Clark, JJ., concur.

Garry, P.J. (dissenting).

We respectfully dissent. Respondent based its denial of petitioner's parole, in part, on "consistent community opposition" – an element that is not among the factors that the Legislature directed respondent to consider in making parole release determinations (see Executive Law § 259–i[2][c][A] ). Although the majority's approach may have some practical appeal, we are bound by the governing law. It is well established that respondent may not rely upon factors outside the scope of Executive Law § 259–i in making decisions concerning parole release (see Matter of King v. New York State Div. of Parole , 83 N.Y.2d 788, 791 , 610 N.Y.S.2d 954, 632 N.E.2d 1277[1994] ; Matter of Duffy v. New York State Dept. of Corr. & Community Supervision , 132 A.D.3d 1207, 1209, 19 N.Y.S.3d 610 [2015] ; Matter of Vaello v. Parole Bd. Div. of State of N.Y. , 48 A.D.3d 1018, 1019, 851 N.Y.S.2d 745 [2008] ; Matter of James v. Chairman of N.Y. State Div. of Parole , 19 A.D.3d 857, 858, 796 N.Y.S.2d 735 [2005] ; see also Matter...