Cherry v. New York State Bd. of Parole
| Decision Date | 25 June 1979 |
| Parties | Application of Jasper CHERRY, Petitioner, v. NEW YORK STATE BOARD OF PAROLE, Respondent. |
| Court | New York Supreme Court |
Petitioner proceeds pursuant to CPLR Article 78 for a judgment directing respondent to furnish petitioner with a new Minimum Period of Incarceration (MPI) hearing.
Petitioner is currently serving an indeterminate sentence of five years for a conviction for Criminal Possession of a Weapon Third Degree, a Class D felony. Since the sentencing court did not impose a minimum term, respondent Board held a hearing pursuant to Executive Law § 259-i(1) in July, 1978 and set his MPI at 38 months. The reasons given for this MPI were: "All reports and reported case factors including the seriousness of risk of injury inherent in conduct like that for which Mr. Cherry now serves time." The instant MPI is within the guidelines established pursuant to Executive Law § 259-c(3). Petitioner has taken an administrative appeal of respondent's determination and said determination has been upheld.
Petitioner contends that respondent's determination is unjustified in that respondent allegedly judged petitioner's MPI on crimes for which he was indicted but not convicted. Petitioner also contends that since the MPI he received makes him eligible for parole only after his conditional release date, he has been effectively denied parole without consideration of all of the factors, including his institutional record, which would be considered at a parole hearing. Petitioner also contends that the reasons given for his MPI are insufficient. Respondent maintains its determination is based upon proper criteria and factors and should not be disturbed. Procedural objections have been withdrawn.
Petitioner was originally indicted for attempted murder, attempted robbery and reckless endangerment along with the weapons charge for which he was convicted. The other three counts of the indictment were dismissed. At the MPI hearing, petitioner was questioned about acts relating to the three dismissed charges. The source of the questions posed to petitioner were three separate statements given by petitioner to probation officers and which statements were included in petitioner's pre-sentence probation report. The transcript of the MPI hearing reveals that the hearing officer was not satisfied with petitioner's explanation of his conduct concerning the incident giving rise to the indictment nor was he satisfied with the contradictions between petitioner's testimony at the hearing and the statements given by petitioner to the probation agency. Upon review, it cannot be said that respondent's judgment of petitioner's version of the facts was arbitrary or capricious.
Executive Law § 259-i(1)(a)(i)(ii).
In light of the above statutory guidelines, it would appear that an MPI determination based, even in part on conduct giving rise to crimes which are dismissed against a defendant, would be improper. (See Russo v. N.Y.S. Board of Parole, Co.Ct., 413 N.Y.S.2d 859). However, in the instant case, the source of the questioning at the MPI hearing was petitioner's own statements in his pre-sentence probation report, which statements were at variance with his testimony at the MPI hearing. Since consideration of a pre-sentence report and any mitigating and aggravating factors is mandated by statute, respondent's determination was in all respects lawful and based on a reasonable foundation, and may not be interfered with by this Court. (Briguglio v. Board of Parole, 24 N.Y.2d 21, 298 N.Y.S.2d 704, 246 N.E.2d 512; Paulsen v. Board of Parole, 46 A.D.2d 661, 359 N.Y.S.2d 828; Executive Law § 259-i(5).)
Petitioner's second contention is that he was in effect denied parole by the length of his MPI without a consideration of additional factors, specifically his institutional record, which would be considered at a parole release hearing. While petitioner will not be...
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