Duffy v. N.Y. State Dep't of Corr.

• Decision Date: 29 October 2015
• Parties: In the Matter of John DUFFY, Respondent, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Appellants.
• Court: New York Supreme Court — Appellate Division

132 A.D.3d 1207
19 N.Y.S.3d 610
2015 N.Y. Slip Op. 07891

In the Matter of John DUFFY, Respondent,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Appellants.

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

Oct. 29, 2015.

19 N.Y.S.3d 611

Eric T. Schneiderman, Attorney General, Albany (Frank Bradyof counsel), for appellants.

Cynthia H. Conti–Cook, Legal Aid Society, New York City, for respondent.

Opinion

LAHTINEN, J.

132 A.D.3d 1207

Appeal from a judgment of the Supreme Court (Mott, J.), entered October 2, 2014 in Columbia County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78 to, among other things, annul a determination of respondent Board of Parole denying petitioner's request for parole release.

In 1982, petitioner was sentenced to a prison term of 20 years to life upon his conviction of murder in the second degree for killing a 15–year–old boy by repeatedly stabbing him. He was denied parole in August 2013 after his seventh appearance before respondent Board of Parole and thereafter commenced this proceeding. Supreme Court granted the petition and directed a de novo hearing after determining that the Board had failed to obtain and consider the sentencing minutes and accompanying recommendations by the sentencing judge when, in fact, such minutes were available. The court further directed the Board to “explicitly address[ ]” the “degree to which [the

132 A.D.3d 1208

victim impact statements] figure in the Board's decision.” Respondents appeal.¹

Inasmuch as the sentencing minutes—previously believed to have been lost—were located after the Board's decision, directing a de novo hearing for the Board to consider such minutes was not error under these unique circumstances (see Matter of Smith v. New York State Div. of Parole,64 A.D.3d 1030, 1031, 882 N.Y.S.2d 759 [2009]; Matter of Lovell v. New York State Div. of Parole,40 A.D.3d 1166, 1167, 835 N.Y.S.2d 514 [2007]; Matter of Standley v. New York State Div. of Parole,34 A.D.3d 1169, 1170–1171 [2006]). Although the sentencing minutes were available by the time Supreme Court decided the petition and do not explicitly reference a parole recommendation, the sentencing judge nonetheless implicitly addressed such issue by discussing in some detail his discomfort with the required maximum range of the sentence (i.e., life in prison) and then imposing less than the maximum on the lower range where he had discretion. Such factors, together with the failure to timely locate available sentencing minutes and the fact that the Board's determination rested primarily upon the serious nature of the crime (see Matter of Jorge v. Hammock,84 A.D.2d 362, 364, 446 N.Y.S.2d 585 [1982]), provide a narrow path for distinguishing this case from those where we have found harmless the Board's failure to consider the sentencing minutes (see e.g. Matter of Matos v. New York State Bd. of Parole,87 A.D.3d 1193, 1194, 929 N.Y.S.2d 343 [2011]; Matter of Ruiz v. New York State Div. of Parole,70 A.D.3d 1162, 1163, 894 N.Y.S.2d 582 [2010]).

19 N.Y.S.3d 612

Supreme Court's directive that the Board explicitly address the degree to which the victim impact statements figured in its decision was improper. Among the many factors the Board is required by statute to consider are statements from crime victims or their representatives if they are deceased or incapacitated (seeExecutive Law § 259–i[2][c][A]). While the Board's ultimate decision denying parole cannot be wholly conclusory, this does not mean that each statutory factor must be discussed at length, as it is established that the Board “need not enumerate, give equal weight [to] or explicitly discuss every factor considered” (Matter of Leung v. Evans,120 A.D.3d 1478, 1479, 991 N.Y.S.2d 917 [2014], lv. denied24 N.Y.3d 914, 2015 WL 233191...