Costello v. N.Y. Bd. of Parole

• Decision Date: 27 December 2012
• Parties: In the Matter of Pablo COSTELLO, Petitioner, v. NEW YORK STATE BOARD OF PAROLE, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 1512
957 N.Y.S.2d 486
2012 N.Y. Slip Op. 09116

In the Matter of Pablo COSTELLO, Petitioner,
v.
NEW YORK STATE BOARD OF PAROLE, et al., Respondents.

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

Dec. 27, 2012.

[957 N.Y.S.2d 487]

Alfred O'Connor, New York State Defenders Association, Albany, for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondents.

Mayer Brown, LLP, New York City (Scott A. Chesin of counsel), for Six Former Members of the New York State Board of Parole, amicus curiae.

Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.

LAHTINEN, J.

[101 A.D.3d 1512]Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Board of Parole which rescinded petitioner's open parole release date and imposed a hold period of 24 months.

During the course of an armed robbery of an auto supply store by petitioner and Luis Torres in December 1978, a New York City police officer, who was unaware of what was transpiring, walked into the store to inquire about a nearby double parked car and was shot and killed by Torres. Petitioner was eventually convicted in 1980 of, among other crimes, felony murder ( People v. Costello, 104 A.D.2d 947, 480 N.Y.S.2d 565 [1984],lv. denied64 N.Y.2d 779, 486 N.Y.S.2d 1028, 476 N.E.2d 343 [1985] ) and received a sentence of 25 years to life in prison on that count.¹ He became eligible for parole in 2003 and, after three unsuccessful appearances before respondent Board of Parole, in August 2009 the Board, by a two-to-one vote, granted petitioner parole with an open release date of September 29, 2009. However, prior to his release date, petitioner's release was temporarily suspended when it was [101 A.D.3d 1513]learned that the deceased officer's wife had not been notified or accorded the opportunity to make a victim impact statement ( see generallyExecutive Law § 259–i[2][c][A][v]; 9 NYCRR 8002.4).

The officer's wife, his four children and other family members gave oral and written victim impact statements in October 2009. The Board ordered a rescission hearing and, following an unsuccessful CPLR article 78 proceeding by petitioner to prohibit the Board from conducting the rescission hearing, such hearing was eventually conducted in October 2010. Evidence presented by petitioner included his laudable achievements while incarcerated as well as support from, among others, a college professor and a member of the clergy. The Board nonetheless unanimously voted to rescind the release date finding that the “compelling statements” from the victim's family constituted significant new information. His administrative appeal was unsuccessful and this proceeding ensued.

Petitioner contends that the victim impact statements were not significant new information and, thus, his parole release date should not have been rescinded. Under circumstances such as prevail here, “the Board's broad discretion to rescind parole was limited only by the requirement

[957 N.Y.S.2d 488]

that there be substantial evidence of significant information not previously known by the Board” ( Matter of Pugh v. New York State Bd. of Parole, 19 A.D.3d 991, 992, 798 N.Y.S.2d 182 [2005],lv. denied5 N.Y.3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133 [2005] [internal citation omitted]; see Matter of Diaz v. Evans, 90 A.D.3d 1371, 1372, 935 N.Y.S.2d 224 [2011];9 NYCRR 8002.5[b][2][i] ). There has been a growing awareness over the last several decades of the importance of keeping crime victims apprised and permitting their input ( see e.g. Executive Law art. 23; Peter Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 440.50 at 152), and statements from victims are one of the statutorily required considerations for parole release ( seeExecutive Law § 259–i[2][c][A][v] ). Thus, “victim impact statements can constitute significant information which, when submitted to [the Board] even after its determination, may justify the temporary suspension or rescission of parole” ( Matter of Raheem v. New York State Bd. of Parole, 66 A.D.3d 1270, 1272, 888 N.Y.S.2d 631 [2009],lv. denied14 N.Y.3d 702, 898 N.Y.S.2d 97, 925 N.E.2d 102 [2010];see Matter of Diaz v. Evans, 90 A.D.3d at 1372, 935 N.Y.S.2d 224;Matter of Pugh v. New York State Bd. of Parole, 19 A.D.3d at 993, 798 N.Y.S.2d 182). Where victims have not previously submitted statements, the “argument that these statements are not new information because [the Board] could anticipate the impact of the crimes on the victims is without merit, as their actual subjective experience is clearly significant information previously unknown to [the [101 A.D.3d 1514]Board]” ( Matter of Raheem v. New York State Bd. of Parole, 66 A.D.3d at 1272, 888 N.Y.S.2d 631).

Review of the record reveals that this is not a situation of rehashing or simply embellishing previously provided victim statements. The victims' voices had been virtually unheard before October 2009. As noted near the beginning of the rescission hearing, victim impact statements had not been available at petitioner's August 2009 parole appearance and no victim impact statements had been provided for the three prior times that he had been considered for parole. The 18–page presentence report prepared in 1980 following petitioner's conviction contained three paragraphs written by the probation officer purporting to represent the statement of the family; but most of this information was a description of the deceased officer's background, character, and accomplishments. There is no discussion of the impact on the family...