Diaz v. Evans

• Decision Date: 22 December 2011
• Citation: 90 A.D.3d 1371,935 N.Y.S.2d 224,2011 N.Y. Slip Op. 09233
• Parties: In the Matter of Jose DIAZ, Petitioner, v. Andrea W. EVANS, as Chair of the Division of Parole, Respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09233
90 A.D.3d 1371
935 N.Y.S.2d 224

In the Matter of Jose DIAZ, Petitioner,
v.
Andrea W. EVANS, as Chair of the Division of Parole, Respondent.

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

Dec. 22, 2011.

[935 N.Y.S.2d 224]

Jose Diaz, Beacon, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.

Before: MERCURE, Acting P.J., SPAIN, LAHTINEN, MALONE JR. and KAVANAGH, JJ.

LAHTINEN, J.

[90 A.D.3d 1371] 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Court by order of the Supreme Court, entered in Albany County) to review a determination of the Board of Parole which rescinded petitioner's open

[935 N.Y.S.2d 225]

parole release date and imposed a hold period of 24 months.

[90 A.D.3d 1372] In 1991, in the course of trying to gun down a rival drug dealer, petitioner fired a hail of bullets into a convenience store, killing an assistant district attorney for the Bronx District Attorney's office. As a result, petitioner was convicted of, among other things, murder in the second degree and sentenced to an aggregate prison term of 15 years to life. In April 2009, after his third appearance before the Board of Parole, the Board granted parole with an open parole release date of August 25, 2009. However, after they were notified of petitioner's impending release, several members of the victim's family and the Bronx District Attorney's office submitted letters in opposition and petitioner's release was temporarily suspended. The Board concluded that the information was new and accordingly scheduled a rescission hearing. Following the hearing, the Board determined that there was substantial evidence warranting rescission of petitioner's parole release and imposed a 24–month hold. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding and Supreme Court ultimately transferred the proceeding to this Court.

We confirm. The Board's broad discretion to rescind parole is limited only by the requirement that there be substantial evidence of significant information not previously known by the Board ( see 9 NYCRR 8002.5[b][2][i]; Matter of Pugh v. New York State Bd. of Parole, 19 A.D.3d 991, 992, 798 N.Y.S.2d 182 [2005], lv. denied 5 N.Y.3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133 [2005]; Matter of Ortiz v. New York State Bd. of Parole, 239 A.D.2d 52, 55, 668 N.Y.S.2d 823 [1998], lv. denied 92 N.Y.2d 811, 680 N.Y.S.2d 457, 703...