Mayfield v. Evans

• Decision Date: 14 February 2012
• Citation: 93 A.D.3d 98,2012 N.Y. Slip Op. 01141,938 N.Y.S.2d 290
• Parties: In re Clarence MAYFIELD, Petitioner–Appellant, v. Andrea EVANS, Chairwoman, New York State Division of Parole, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01141

93 A.D.3d 98

938 N.Y.S.2d 290

In re Clarence MAYFIELD, Petitioner–Appellant,

v.Andrea EVANS, Chairwoman, New York State Division of Parole, Respondent–Respondent.

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

Feb. 14, 2012.

West Codenotes

Held Unconstitutional

9 NYCRR 8005.20(c)(6)

Steven Banks, The Legal Aid Society, New York (Martin J. LaFalce of counsel), for appellant.

Eric T. Schneiderman, Attorney General, New York (Simon Heller and Benjamin N. Gutman of counsel), for respondent.

ANGELA M. MAZZARELLI, J.P., DAVID B. SAXE, ROLANDO T. ACOSTA, LELAND G. DEGRASSE, SALLIE MANZANET–DANIELS, JJ.

ACOSTA, J.

This appeal gives us the opportunity to address the statutory and constitutional validity of the New York State Division of Parole's bifurcated parole revocation process pursuant to 9 NYCRR § 8005.20(c)(6), the regulation establishing such a process for parolees who have been convicted of homicide, sex crimes or kidnapping. We hold that this regulation is a usurpation of legislative prerogative and therefore void. We thus remit this matter to the New York State Board of Parole (Parole Board) so that petitioner may receive a new hearing that is consistent with the strictures of Executive Law § 259–i(3)(f) as well as due process guarantees.

Background

In 1998 petitioner was convicted of manslaughter in the first degree and sentenced to an indeterminate term of 6 to 18 years. That sentence ran concurrently with his 1992 conviction for robbery in the first degree and his 1992 conviction for attempted murder in the second degree.

On October 16, 2008, petitioner was conditionally released to parole supervision. On January 29, 2009, the Division of Parole issued a parole violation warrant and charged petitioner with violating the conditions of his parole. Petitioner was taken into custody immediately and without incident. On April 17, 2009, the Division supplemented petitioner's parole violation report to add an additional charge.

From April 17, 2009 until May 6, 2009, petitioner's counsel negotiated with the Division Deputy Chief Edmund Del Rio and Administrative Law Judge (ALJ) Amy Porter as to an appropriate disposition. After an “intense investigation,” the Division concluded that the initial charges were “unfounded.” As to the additional charge made on April 17, 2009, Deputy Chief Del Rio offered to recommend an 18 month time assessment in exchange for petitioner's guilty plea.

On May 5, 2009, petitioner's revocation hearing was held. ALJ Porter, who presided over the hearing, agreed to honor the plea arrangement, and recommended to the Parole Board that petitioner next be considered for re-release in 18 months. The initial charges were dismissed, and petitioner pleaded guilty to the additional charge made on April 17, 2009. Additionally, petitioner was given the opportunity to present mitigating evidence regarding his violation of the additional charge.

ALJ Porter's written decision stated that a parole violation had occurred and recommended that petitioner be given an 18 month time assessment. The ALJ further prepared an “Analysis Sheet,” which stated that charges 1–6 were “unfounded” and withdrawn. The ALJ did not note petitioner's mitigating evidence in either her written decision or the Analysis Sheet.

Subsequently, pursuant to 9 NYCRR 8005.20(c)(6), a Parole Board Commissioner issued a decision fixing petitioner's date for consideration of re-release by the Parole Board at 36 months. The Commissioner's one sentence decision noted that petitioner had prior convictions for robbery as well as attempted murder, and that his parole violation occurred only 1 1/2 months after his release.

Following the Commissioner's determination, petitioner filed an administrative appeal challenging the summary parole revocation procedure created by 9 NYCRR 8005.20(c)(6), as well as the 36–month time assessment. On July 21, 2010, the Division of Parole rejected petitioner's challenge to the time assessment on the grounds that (1) petitioner waived his rights by failing to object at the hearing before ALJ Porter, and (2) the Parole Board retained exclusive authority to impose punishment against parole violators.

In October 2010 petitioner filed an article 78 petition challenging the Division's determination. Petitioner argued that the decision made pursuant to 9 NYCRR § 8005.20(c)(6) was arbitrary, violated Executive Law § 259–i(3)(f)(x), and denied him due process of law. Petitioner requested that the court annul 9 NYCRR 8005.20(c)(6) and/or direct respondent Chairwoman of the Division to reduce the time assessment to 18 months. In its answer, respondent asserted that due process does not apply to parole revocation determinations once a violation has been found, and that the Executive Law permitted the summary procedure created in 9 NYCRR 8005.20(c)(6).

By order entered March 15, 2011, Supreme Court denied the petition and dismissed the proceeding, finding that (1) the regulation authorizing a single Parole Board commissioner to modify the ALJ's time-assessment recommendation does not violate Executive Law § 259–i(3); (2) the regulation does not violate petitioner's due process rights; and (3) the decision to extend petitioner's time assessment to 36 months was not arbitrary and capricious ( see Mayfield v. Evans, 2011 N.Y. Slip Op. 30552[U], 2011 WL 939282 [2011] ).

Petitioner moved to reargue that part of the court's decision that rejected his argument that § 8005.20(c)(6) violates Executive Law § 259–i(3)(f). In its decision on reargument, Supreme Court again found that the regulation was not “out of harmony” with the statute, supplementing its reasoning with the observation that the statute allows the presiding officer only to “fix a date for consideration by the board,” and that this language allows the Parole Board to impose an additional level of review “in the case of certain specified crimes” ( Mayfield v. Evans, 2011 N.Y. Slip Op. 31744[U], 2011 WL 2604450 [2011] ). This appeal followed, and we reverse and remand for the reasons stated below.

Analysis

Generally, the process by which alleged parole violations are adjudicated is governed by Executive Law § 259–i(3)(f). The statutory procedure outlined therein provides that a parolee has the right to confront and cross-examine witnesses (unless there is good cause for the witnesses' nonattendance) and to present witnesses and evidence (§ 259–i(3)(f)[v] ). At the close of the hearing, the presiding officer may sustain or dismiss any or all of the violation charges ( see § 259–i[3][f][viii] ). If any violation charges are sustained, the presiding officer must prepare a written statement indicating, among other things, the evidence relied upon and the reasons for the disposition (§ 259–i[3][f][xi] ). For each violation found, the officer may, among other things, restore the violator to supervision or direct reincarceration and issue a “time assessment”—i.e., a date upon which a violator becomes eligible for consideration by the Board for re-release ( see Executive Law § 259–i[3][f][x] ).

However, in the case of parolees, such as petitioner, who have been convicted of homicide, sex crimes, kidnapping and related offenses, the time-assessment portion of the parole revocation procedure is governed by 9 NYCRR 8005.20(c)(6). Pursuant to that regulation, the presiding officer's time assessment for parole violators convicted of these serious crimes is transformed into nothing more than a mere recommendation. The ultimate time assessment for this class of violators is determined by a single member of the Parole Board, and that individual is not bound by the recommendation of the presiding officer ( see People ex rel Larocco v. Warden, 82 A.D.3d 604, 605, 919 N.Y.S.2d 328 [2011], lv. denied 17 N.Y.3d 703, 929 N.Y.S.2d 93, 952 N.E.2d 1088 [2011]; People ex rel. Coleman v. Smith, 75 A.D.2d 706, 707, 427 N.Y.S.2d 108 [1980], lv. denied 50 N.Y.2d 804, 431 N.Y.S.2d 1026, 410 N.E.2d 752 [1980] ), or any of the strictures of Executive Law § 259–i(3)(f).

Statutory Claim

The Court of Appeals has long held that “[t]he Legislature may authorize an administrative agency to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation' ” ( Matter of Allstate Ins. Co. v. Rivera, 12 N.Y.3d 602, 608, 883 N.Y.S.2d 755, 911 N.E.2d 817 [2009], quoting Matter of Medical Socy. of State of N.Y. v. Serio, 100 N.Y.2d 854, 865, 768 N.Y.S.2d 423, 800 N.E.2d 728 [2003], quoting Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 31, 416 N.Y.S.2d 565, 389 N.E.2d 1086 [1979] [emphasis added] ). In practice, this has meant that “an agency [charged with the enforcement of a statute has been empowered to] adopt regulations that go beyond the text of that legislation, provided they are not inconsistent with the statutory language or its underlying purposes” ( Matter of Allstate Ins. Co. v. Rivera, 12 N.Y.3d 602, 608, 883 N.Y.S.2d 755, 911 N.E.2d 817 [2009], quoting Matter of General Elec. Capital Corp. v. New York State Div. of Tax Appeals, Tax Appeals Trib., 2 N.Y.3d 249, 254, 778 N.Y.S.2d 412, 810 N.E.2d 864 [2004] ). Nevertheless, such “an agency cannot promulgate rules or regulations that contravene the will of the Legislature” and the express terms of the authorizing statute ( Weiss v. City of New York, 95 N.Y.2d 1, 4–5, 709 N.Y.S.2d 878, 731 N.E.2d 594 [2000], citing Finger Lakes Racing Assn. v. New York State Racing & Wagering Bd., 45 N.Y.2d 471, 480, 410 N.Y.S.2d 268, 382 N.E.2d 1131 [1978]; cf. Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 [1988] ).

In ascertaining whether a regulation is consistent with the statute that it is based on, “this Court is faced with the interpretation of statutes and pure questions of law and no deference is accorded the agency's determination” ( Matter of Madison–Oneida Bd. of Coop. Educ. Servs. v. Mills, 4 N.Y.3d...