Boehm v. Evans

• Citation: 79 A.D.3d 1445,914 N.Y.S.2d 318
• Parties: In the Matter of Robert BOEHM et al., Appellants, v. Andrea EVANS, as Chair of the New York State Division of Parole, Respondent.
• Decision Date: 16 December 2010
• Court: New York Supreme Court Appellate Division

914 N.Y.S.2d 318
79 A.D.3d 1445

In the Matter of Robert BOEHM et al., Appellants,
v.
Andrea EVANS, as Chair of the New York State Division of Parole, Respondent.

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

Dec. 16, 2010.

914 N.Y.S.2d 319

Karen Murtagh-Monks, Prisoners Legal Services, Albany (James M. Bogin of counsel), for appellants.

Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

Before: MERCURE, J.P., MALONE JR., KAVANAGH, GARRY and EGAN JR., JJ.

MERCURE, J.P.

79 A.D.3d 1446

Appeal from a judgment of the Supreme Court (Connolly, J.), entered April 5, 2010 in Albany County, which partially granted

914 N.Y.S.2d 320

petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner Robert Boehm's request to remove a special condition imposed upon his parole release.

In 1999, petitioner Robert Boehm (hereinafter petitioner) was arrested for rape in the first degree and thereafter convicted, upon his plea of guilty, of sexual abuse in the first degree. The victim, who was his girlfriend at the time and is a petitioner in this proceeding, later married petitioner while he was serving a subsequent prison term in connection with a 2004 conviction of burglary in the second degree. Petitioners participated in Family Reunion Program visits three times between October 2006 and October 2007.

In November 2008, petitioner appeared before the Board of Parole, which issued a decision setting the conditions for his anticipated release from prison. In light of the sex offense committed by petitioner against his wife, as well as evidence of a history of domestic violence between the two, the Board imposed several conditions, including the requirement that petitioner refrain from "associat[ing] in any way or communicat[ing] by any means with [his wife] without the permission of" his parole officer. After the Division of Parole denied their request to remove this special condition, petitioners commenced this proceeding challenging the condition. Supreme Court concluded that the special condition was narrowly tailored to meet a compelling state interest, and that it was neither arbitrary nor capricious. Nevertheless, inasmuch as a March 2010 update to the condition ¹ did not expressly reference the parole officer's discretion to permit contact, the court remitted the matter to the Division of Parole. The parties are in agreement that the parole officer retained discretion to permit contact.

Upon petitioners' appeal, we now affirm. "[T]he decision to impose a special condition upon the release of an inmate is discretionary in nature and beyond the review of the courts so long as made in accordance with law" ( Matter of Dickman v. Trietley, 268 A.D.2d 914, 916, 702 N.Y.S.2d 449 [2000]; see

79 A.D.3d 1447

Matter of Ahlers v. New York State Div. of Parole, 1 A.D.3d 849, 849, 767 N.Y.S.2d 289 [2003] ). Petitioners concede that respondent had a compelling interest in supervising petitioner upon his release ( see generally Samson v. California, 547 U.S. 843, 853, 126 S.Ct. 2193, 165 L.Ed.2d 250 [2006]; People v. Sparber, 10 N.Y.3d 457, 469, 859 N.Y.S.2d 582, 889 N.E.2d 459 [2008] ), and that respondent has the discretion to impose conditions restricting contact between spouses...