Diaz v. N.Y. State Bd. of Parole

Decision Date10 December 2013
Citation42 Misc.3d 532,2013 N.Y. Slip Op. 23422,976 N.Y.S.2d 838
PartiesIn the Matter of the Application of Steven DIAZ, Petitioner, v. NEW YORK STATE BOARD OF PAROLE, Respondent.
CourtNew York Supreme Court

42 Misc.3d 532
976 N.Y.S.2d 838
2013 N.Y. Slip Op. 23422

In the Matter of the Application of Steven DIAZ, Petitioner,
v.
NEW YORK STATE BOARD OF PAROLE, Respondent.

Supreme Court, Cayuga County, New York.

Dec. 10, 2013.



Eric T. Schneiderman, Esq., Attorney General of the State of New York by Ray A. Kyles, Esq., Assistant Attorney General of Counsel, Syracuse, for Respondent.

Steven Diaz, Cayuga, Petitioner, pro se.


MARK H. FANDRICH, J.

Petitioner, who is presently an inmate at Cayuga Correctional Facility, is challenging the New York State Division of Parole's determination denying him parole release and directing that he be held for an additional 24 months. Petitioner commenced this proceeding pursuant to CPLR Article 78 requesting that the Court reverse and set aside Respondent's determination of June 26, 2012. Petitioner argues, among other things, that the Board has failed to comply with the legislative mandate of Executive Law § 259–c(4), focused on Petitioner's criminal history without fairly considering other statutory factors, and failed to articulate its reasoning for its decision.

[976 N.Y.S.2d 839]

Petitioner was convicted of Criminal Possession of a Weapon in the Third Degree, and sentenced on May 9, 1996, as a persistent violent felony offender to a term of incarceration of eight years to life. Petitioner's arrest and subsequent conviction stemmed from an incident whereby Petitioner was found to be in possession of a loaded pistol ( see Respondent's Verified Answer and Return, Exhibits C and D). At the time of his arrest, Petitioner was on parole for a charge of Burglary in the First Degree. Prior thereto, Petitioner had been convicted of Manslaughter in the First Degree and was on parole for that charge at the time of his arrest for burglary ( see Respondent's Verified Answer and Return, Exhibit C).

This was Petitioner's sixth appearance before the Parole Board. On June 26, 2012, the Board denied Petitioner parole and ordered him held for another 24 months. The Parole Board decision reads as follows:

“Denied—hold for 24 months. Next appearance date: 06/2014. Parole Denied. After a personal interview, record review and deliberation, this panel finds your release is incompatible with the public safety and welfare. Required statutory factors have been considered including your risk to the community, rehabilitation efforts, and your needs for successful community reintegration. Your record dates from a 1980 state prison term for Manslaughter 1st and Robbery 1st. You were paroled and returned for an additional Burglary 1st conviction. You were again paroled and in 1994 found in possession of a loaded handgun, resulting in the instant offense of CPW 3rd. Consideration has been given to your improved behavior since 2009 and program accomplishments. However, due to your demonstrated pattern of weapon crimes, and poor history on parole, your release at this time is denied. There is a reasonable probability that you would not live and remain at liberty without violating the law.”

Petitioner filed and perfected an administrative appeal. On or about June 18, 2013, more than four month after the Petitioner perfected his appeal, the Administrative Appeal Decision Notice was issued affirming the Parole Board's decision. For purposes of this special proceeding, Petitioner is deemed to have exhausted his administrative remedies.

Petitioner argues that Respondent has not complied with the legislative mandate of Executive Law § 259–c(4), in that it failed to adopt a new rule as required by the amendments to the statute. In 2011, Executive Law § 259–c(4) was amended to include language that the Parole Board is to establish written procedures for its use in making parole decisions ( see L. 2011, c. 62, pt. C, subpt. A, § 38–b). Such procedures are...

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