Garcia v. New York State Div. of Parole

• Decision Date: 15 May 1997
• Citation: 239 A.D.2d 235,657 N.Y.S.2d 415
• Parties: In re Application of Tyrone GARCIA, Petitioner-Respondent, For a Judgment, etc., v. The NEW YORK STATE DIVISION OF PAROLE, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 415

657 N.Y.S.2d 415

239 A.D.2d 235

In re Application of Tyrone GARCIA, Petitioner-Respondent,

For a Judgment, etc., v. The NEW YORK STATE DIVISION OF PAROLE, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

May 15, 1997.

Ben Gainer, for Petitioner-Respondent.

Dian Kerr McCullough, for Respondent-Appellant.

Before MILONAS, J.P., and ELLERIN, RUBIN and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (William Davis, J.), entered March 27, 1996, which, inter alia, granted petitioner's application brought pursuant to CPLR Article 78 to annul respondent's decision denying petitioner's application for parole, unanimously reversed, on the law, without costs, the decision reinstated and the petition denied.

In June, 1983, petitioner Tyrone Garcia was charged and convicted of the attempted murder of William Wachtel, who, in exchange for a sum of money paid by his wife, was kidnapped by petitioner and two others, one of whom was Wachtel's wife's boyfriend, stuffed in the trunk of a car and shot numerous times through the trunk. Petitioner, who at the time had no criminal history other than a youthful offender adjudication based upon an arrest for criminal trespass, does not deny that he participated in this crime, though he contends that he only agreed to participate in a robbery for a small sum of money and was deceived as to the intentions of the other participants, who had set out from the start to murder Wachtel. Petitioner admits that, after the other men had fired into the trunk several times, he himself fired two more shots into the trunk, though he contends that he had no choice but to do so. The men then left Wachtel on the side of the road for dead. Although Wachtel survived, two bullets remain lodged in his head.

On August 1, 1984, pursuant to a jury verdict, a judgment was rendered convicting petitioner of attempted murder in the second degree, kidnapping in the second degree, two counts of robbery in the first degree, and criminal possession of a weapon in the second degree, and sentencing him to consecutive terms of imprisonment totaling 38 1/3 to 115 years.

On appeal the conviction was reversed because a juror was improperly discharged over the objection of defendant, and a new trial was ordered (People v. Garcia, 153 A.D.2d 951, 545 N.Y.S.2d 758, lv. denied, 75 N.Y.2d 919, 555 N.Y.S.2d 37, 554 N.E.2d 74). In March, 1991, petitioner pleaded guilty to the same crimes of which he had previously been convicted and was sentenced to five terms of 8 to 24 years, and one term of 5 to 15 years, all to run concurrently. On appeal, this conviction was affirmed (People v. Garcia, 186 A.D.2d 674, 589 N.Y.S.2d 785, lv. denied, 81 N.Y.2d 762, 594 N.Y.S.2d 724, 610 N.E.2d 397).

While in prison, petitioner, who was 20 years old, essentially illiterate and leading an admittedly self-destructive life style at the time the crime was committed, has made enormous strides. He has earned a high school equivalency diploma as well as an Associate's Degree in Business from Sullivan County Community College and has designed and presented seminars to high school students, directed at teaching young people the consequences of delinquent behavior, for which he has received awards from the Woodbourne Community Awareness Program as well as an award of recognition for outstanding service to the young people of Sullivan County from the Sullivan County Youth Board and Youth Bureau and commendations from local schools.

Furthermore, having successfully completed the Adult Peer Counseling Bilingual Compadre Helper Program sponsored by the New York State Education Department, a workshop for training in Nonviolent Conflict Resolution sponsored by the Quakers Alternative to Violence project and a counseling program sponsored by the Hispanic Inmate Organization, he has now started counseling other young inmates regarding alcohol and drug problems.

Petitioner also served as secretary and then president of the Hispanic Inmate Organization and assistant director of the Community Awareness Program, in which he has been commended for playing a key role in developing programs that meet the needs of the Hispanic inmate population. He has worked as an Inmate Grievance Clerk, a law clerk, a law class instructor and as clerk to the prison chaplain. He has received a number of clearly sincere recommendations, which emphasize his motivation and his ability to reach others. He has also demonstrated a strong preparation for release by successfully completing the Pre-Release Cycle Program, a program in Labor Market Preparedness and the Personality Plus seminar at the Personality Development Center, and by obtaining three offers of post-release employment.

Having been in prison since 1984, petitioner came up for his second hearing before the Board of Parole on April 12, 1993. During the hearing, the Board conducted a lengthy interview of petitioner about, inter alia, the crime he committed, what he had accomplished in prison, his prior criminal history and his plans for when he gets out of prison. Immediately following this interview, one of the two Commissioners who conducted the hearing dictated the following decision:

Following a review of your record and personal interview, parole is again denied based upon the heinous nature of your crime wherein you attempted to murder your victim in an arranged in-concert, "for hire" attempt at the execution of the victim. Your prior record reflects other offenses. However, escalation of your behavior and real callousness is shown in the instant offense. During interview you make a positive presentation and we do note your accomplishments. Maintain satisfactory programming until reappearance.

In response to petitioner's administrative appeal, the appeals unit upheld the Board's denial and petitioner...