Banks v. Stanford

• Decision Date: 07 February 2018
• Docket Number: 2015–12596,Index No. 2456/14
• Parties: In the Matter of Frank H. BANKS, respondent, v. Tina Marie STANFORD, etc., appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 134

71 N.Y.S.3d 515

In the Matter of Frank H. BANKS, respondent,

v.Tina Marie STANFORD, etc., appellant.

2015–12596

Index No. 2456/14

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

Argued—March 22, 2017

February 7, 2018

Eric T. Schneiderman, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Philip V. Tisne of counsel), for appellant.

Frank H. Banks, Otisville, NY, respondent pro se.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

OPINION & ORDER

DILLON, J.P.

This is an appeal from an order holding the Chairperson of the New York State Board of Parole (hereinafter the Board) in civil contempt for the manner in which the Board proceeded after the Supreme Court remitted the matter for a "de novo hearing." In determining this appeal, we are called upon to define and clarify the distinction in Executive Law § 259–i between a parole "hearing" and a parole "interview."

I. Facts

The petitioner, Frank H. Banks, was convicted on February 26, 1987, in the Supreme Court, Kings County (Pincus, J.), of murder in the second degree, manslaughter in the first degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree. The convictions arose out of an incident which had occurred three years earlier, in which the petitioner and others committed an attempted armed robbery of a taxi dispatch garage. During the attempted robbery, the petitioner and his accomplices ordered the garage employees to lie on the floor, and several gunshots were fired. When a 60–year–old garage employee attempted to resist, the petitioner shot him in the stomach "at point blank range," killing him. The petitioner and his accomplices fled the scene in a vehicle that almost ran down a sanitation worker when it mounted a sidewalk in an attempt to bypass a garbage truck. A license plate number was taken, which helped lead to the petitioner's arrest.

The petitioner committed the attempted robbery to support what he later described as a "gambling fetish." He had previously been convicted of various crimes, including criminal possession of a weapon in the fourth degree in 1981, attempted grand larceny in the third degree in 1982, and criminal possession of a weapon in the third degree in 1983. As relevant here, the petitioner was sentenced by the Supreme Court to a term of imprisonment of 25 years to life for the conviction of murder in the second degree, 12½ to 25 years for the conviction of manslaughter in the first degree, 7½ to 15 years for the conviction of attempted robbery in the first degree, and 7½ to 15 years for the conviction of criminal possession of a weapon in the second degree. The sentences for manslaughter, attempted robbery, and criminal possession of a weapon ran consecutively to one another, and all ran concurrently with the sentence for murder in the second degree. Upon the defendant's appeal from the judgment of conviction, this Court modified the judgment to the limited extent of providing that all sentences were to run concurrently with each other (see People v. Banks, 208 A.D.2d 759, 617 N.Y.S.2d 796 ). In doing so, this Court explained that the petitioner's criminal possession of a gun immediately prior to the shooting did not establish sufficient proof of a separate and distinct act as to justify the imposition of consecutive sentences (see id. at 760, 617 N.Y.S.2d 796 ). This Court denied the petitioner's subsequent application for a writ of error coram nobis, holding that he had failed to establish that he was denied the effective assistance of appellate counsel (see People v. Banks, 234 A.D.2d 377, 651 N.Y.S.2d 877 ).

The record indicates that the petitioner first became eligible for parole release in 2010, and his application was denied on July 21, 2010. The petitioner's second application for parole was denied in July 2012.

On July 29, 2014, the petitioner appeared before the Board of Parole on his third parole application interview. On July 30, 2014, the Board denied the petitioner's third application for parole release. The Board's written decision stated that it had conducted a careful review of the record and interview, and that the petitioner's "release would not be compatible with the welfare of society." The Board noted the "heinous nature" of the crimes, which caused the death of the victim and reflected "a propensity for violence and a callous disregard for the sanctity of human life." The Board further explained that it had considered all required statutory parole factors, including risk to the community, rehabilitative efforts, needs for successful reintegration into society, institutional adjustment, community support, and community opposition. The Board concluded that despite the petitioner's positive efforts while incarcerated, his release would undermine respect for the law and trivialize the loss of life he had caused.

In August 2014, the petitioner filed an administrative appeal. The Appeals Unit did not decide the appeal within four months of its receipt of the notice of appeal. Thus, the petitioner sought judicial review of the determination dated July 30, 2014.

By order to show cause dated December 12, 2014, and verified petition dated December 8, 2014, the petitioner commenced a proceeding pursuant to CPLR article 78 to annul the Board's determination and to direct the Board to conduct a de novo parole release hearing. The petitioner argued that the Board's decision was arbitrary and capricious, that it failed to explain how his release would be incompatible with the welfare of society, and that it did not explain how his release would trivialize the loss of life.

In her verified answer, dated January 30, 2015, Tina Marie Stanford, the Board's Chairperson, maintained that the Board properly considered all required statutory factors and did not act arbitrarily or capriciously. Alternatively, Stanford argued that if the Board's decision met the legal standard of irrationality bordering on impropriety, the petitioner's remedy was not a judicial determination granting parole, but rather, "a de novo parole interview."

In a judgment dated May 14, 2015, the Supreme Court granted the CPLR article 78 petition. The court determined that the Board's decision to deny parole to the petitioner was arbitrary and capricious, irrational, and improper, primarily because it relied solely and conclusorily upon the nature of the underlying offenses. As particularly relevant here, the court's decretal paragraph "ORDERED that the matter [be] remitted to Stanford for a de novo hearing on the matter of Petitioner's release to parole supervision."

On July 28, 2015, the Board did not conduct a de novo evidentiary "hearing." There was instead a de novo "interview" of the petitioner and his record was re-examined. The transcript of the interview is ten pages in length. During the course of the interview, the petitioner had an opportunity to discuss his lack of disciplinary history since 2005, his prospects for future employment if granted parole, his interest in religion, his education and aggression replacement training while incarcerated, the crimes underlying his convictions, his COMPAS Risk Assessment, his 2010 Quantitative Profile, and his remorse for the 1987 murder.

An oral decision, once again denying parole, was placed on the record at the conclusion of the de novo interview. Thereafter, in a written decision dated September 14, 2015, the Board explained that parole was not merely a reward for good behavior and accomplishments while in prison, which it noted were factors in the petitioner's favor. The Board found that the petitioner's crimes represented an escalation of his history of criminal activity, and reiterated its prior finding that a parole release would trivialize the gravity of harm inflicted upon the victim and his family, and be incompatible with the welfare of society.

On August 27, 2015, after the Board had rendered its oral decision denying parole, the petitioner moved to hold Stanford in contempt for failing to comply with the May 14, 2015, judgment. The petitioner primarily argued that the review that was conducted pursuant to the judgment was a "sham," in that it resulted in a decision that was conclusory and again reliant upon the nature of the underlying offenses. In opposition, Stanford argued, inter alia, that the Board fully complied with the judgment by providing a de novo interview and a fresh consideration of all relevant factors that parole boards are statutorily required to consider.

In the order appealed from, dated December 2, 2015, the Supreme Court granted the petitioner's motion, held Stanford in civil contempt, annulled the Board's July 2015 determination, remitted the matter to Stanford for yet another de novo hearing, and imposed a fine in the sum of $250 on Stanford. The court's focus in finding Stanford in civil contempt was different from that argued by the parties in their submissions. The court noted that in its judgment dated May 14, 2015, it had expressly directed Stanford to conduct a de novo "hearing," and that the Board instead only provided, by its own admission, a de novo "interview." The court stated that its direction that the petitioner receive a new "hearing" was intended to include the de novo compilation of records, reports, and recommendations addressing the prospective parolee's suitability for release, which was not performed by the Board.

For the reasons set forth below, we reverse the order appealed from and deny the petitioner's motion to hold Stanford in civil contempt.

II. The Law of Civil Contempt

An often-cited opinion from the Court of Appeals defining the elements of civil contempt is Matter of McCormick v. Axelrod, 59 N.Y.2d 574, 466 N.Y.S.2d 279, 453 N.E.2d 508, amended on other grounds 60 N.Y.2d 652, 467 N.Y.S.2d 571, 454 N.E.2d 1314, and its elements are not in dispute here. First, there must be a lawful order of the court in effect clearly expressing an...