Hawkins v. N.Y. State Dep't of Corr. & Cmty. Supervision
| Decision Date | 11 May 2015 |
| Docket Number | No. 0011–15.,0011–15. |
| Citation | 41 N.Y.S.3d 449 (Table) |
| Parties | In the Matter of the Application of Dempsey HAWKINS, 79 B 0609, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Anthony J. Annucci, Acting Commissioner, New York State Board of Parole, Tina Stanford, Chairperson, Respondents. |
| Court | New York Supreme Court |
Issa Kohler–Hausmann, Esq., and Christopher Seeds, Esq., Brooklyn, for Petitioner.
Attorney General of the State of New York, Poughkeepsie by Leilani Rodriguez, AAG, of counsel, for Respondents.
This matter comes before the Court on Petitioner's request for immediate release to parole, or in the alternative, a de novo parole hearing. Respondents have submitted an affirmation in opposition. Petitioner submitted a reply The court heard oral argument on March 13, 2015.
At the outset, Respondents argued, and this Court agrees, that the Court is without authority at this time to order Petitioner's immediate release. For the reasons stated below, however, the Petitioner is entitled to a de novo parole hearing.
On May 15, 1976, then 16–year–old Petitioner strangled his 14–year–old girlfriend and hid her body in a 55–gallon drum in a wooded area. The location of the murder was within feet of the location in which Petitioner hid the body. He was able to evade arrest for approximately 22 months, during which time he participated in searches with the victim's family and friends, and then moved out of state, to Illinois. He was eventually arrested in Illinois on May 5, 1978, extradited to New York, and charged with Murder in the Second Degree. He was tried by a jury in Richmond County (Staten Island, New York) after which trial the jury found Petitioner guilty of Murder in the Second Degree. On April 6, 1979, the court sentenced Petitioner to an indeterminate term of 22 years to life in state prison.
Petitioner was 54 years old and had served 36 years of his sentence at the time of his last parole interview (14 years beyond his minimum sentence) on March 26, 2014, which was his ninth appearance, at Mt. McGregor Correctional Facility.1 The hearing took place before Commissioners W. Smith, Hernandez and Elovich. The board denied parole release and imposed a 24–month hold. Petitioner timely filed a notice of administrative appeal and timely perfected said administrative appeal. Petitioner then timely filed the within petition for Article 78 review.
Petitioner argues that the board's decision focused exclusively on the instant offense, ignored Petitioner's overall excellent disciplinary record, ignored Petitioner's institutional achievements, support for release, plans for release, and final order for deportation, rendering the decision to deny parole arbitrary and capricious. Petitioner further contends that the Commissioners were misinformed and argumentative, that they ignored the juvenile age of Petitioner when he committed the instant offense, and violated their own rules when considering parole. For the reasons stated below, this Court agrees with Petitioner's arguments and grants the within petition for a de novo parole interview.
Executive Law, Section 259–i(2)(c)(A) states in pertinent part:
In making the parole release decision, the guidelines adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article shall require that the following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate....
Executive Law, Section 259–i(2)(c)(A) The parole board must also consider whether “there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for the law.” 9 NYCRR 8002.1.
In reaching its decision, the board must also consider:
Parole Boards have very wide discretion to grant or deny parole release; the board decides how much weight to give each of the factors listed above. Phillips v. Dennison, 41 AD3d [1st Dept.2007]. It is also not necessary that the board expressly discuss each of the factors or any guidelines in its determination. Walker v. Travis, 252 A.D.2d 360 [3rd Dept.1998]. An inmate bears the heavy burden of establishing that the determination of a parole board was the result of “irrationality bordering on impropriety.” Matter of Silmon v. Travis, 95 N.Y.2d 470 [2000] ; Russo v. New York State Bd. of Parole, 50 N.Y.2d 69 [1980]. Nonetheless, the reasons for denying parole must “be given in detail and not in conclusory terms.” Executive Law, Section 259–i(2)(a) ; Wallman v. Travis, 18 AD3d 304 [1st Dept.2005] ; Malone v. Evans, 83 AD3d 719 [2nd Dept.2011].
The standard of review in regard to parole release is whether the decision was so irrational as to border on impropriety. Matter of Russo v. New York State Board of Parole, 50 N.Y.2d 69 [1980] ; Epps v. Travis, 241 A.D.2d 738 [3rd Dept.1997] ; Matter of Silmon v. Travis, 95 N.Y.2d 470 [2000]. When considering the various factors, the weight accorded to any particular factor is solely within a parole board's discretion. Matter of Santos v. Evans, 81 AD3d 1059 [3rd Dept.2011] ; Matter of Wise v. New York State Division of Parole, 54 AD3d 463 [3rd Dept.2008 ]. Included in such factors are the seriousness of the instant offense(s) and an inmate's criminal history. Executive Law § 259–i(2)(A).
In 2011, the legislature made changes to Executive Law, § 259. Executive Law, § 259–i(2)(c)(A) requires that the board make parole determinations pursuant to Executive Law, § 259–c(4). The changes to Executive Law, § 259–c(4) became effective on October 1, 2011. In essence, those modifications now require that parole boards (1) consider the seriousness of the underlying crime in conjunction with the other factors enumerated in the statute, Executive Law, § 259–i(2)(c)(A), and (2) conduct a risk assessment analysis to determine if an inmate has been rehabilitated and is ready for release. Executive Law, § 259–c(4). The changes were intended to shift the focus of parole boards to a forward-thinking paradigm, rather than a backward looking approach to evaluating whether an inmate is rehabilitated and ready for release.
By revising these two sections of the Executive Law, the legislature established the method by which the board must assess whether an inmate seeking parole has met the release standard, by reference to the “written procedures” adopted pursuant to § 259–c(4), which procedures must incorporate risk and needs principles to measure whether the inmate has met the release standards. While the risk and needs assessment establishes a presumptive finding by offering a scientific assessment of whether the inmate has met the standard established in § 259–i(2)(c)(A), the board must still make its final determination by considering the factors enumerated in § 259–i(2)(c)(A).
Last, Executive Law § 259–i(5) states, “any action by the board or by a hearing officer pursuant to this article shall be deemed a judicial function and shall not be reviewable if done in accordance with the law.” In Matter of Hamilton v. New York State Division of Parole, 119 AD3d 1268 [3rd Dept.2014, the Third Department held, “so long as the Board violates no positive statutory requirement, its discretion is absolute and beyond review in the courts.” Id. At 1269, quoting Matter of Hines v. State Bd. of Parole, 293 N.Y. 254 [1944]. That does not mean administrative parole decisions are virtually unreviewable; Hamilton simply clarifies what the statute has demanded for many years-that any action by the board must be in accordance with the law, or it is subject to judicial review.
While a parole board enjoys a significant level of discretion, the discretion is not unlimited. There are numerous things a parole board cannot do. First, a parole board cannot base its decision to deny parole release solely on the serious nature of underlying crime. Rios v. New York State Div. of Parole, 15 Misc.3d 1107(A) [Sup.Ct. Kings Co.2007 ] ; see also, King v. New York State Division of Parole, 190 A.D.2d 423 [1st Dept.1993], aff'd 83 N.Y.2d 1277. Second, while the board need not consider each guideline separately, and has broad discretion to consider the importance of each factor, the board must still consider the guidelines. Executive Law § 259–i(2)(a) ; Rios, supra. Third, the reasons for denying parole must be given in detail and not conclusory terms. Executive Law § 259–i(2)(a) ; Wallman v. Travis, 18 AD3d 304 [1st Dept.2005 ]. Last, a parole board cannot retry an inmate, harass, badger or argue with an inmate, second guess the findings of competent experts involved in the inmate's trial, or infuse their own personal beliefs into the proceeding. King, supra at 432.
In King, the ...
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