McMoore v. Regan

• Citation: 79 Misc.2d 795,364 N.Y.S.2d 79
• Parties: In the Matter of Kenneth McMOORE, Petitioner, v. Paul REGAN, Chairman, N.Y. State Board of Parole, Respondent.
• Decision Date: 21 November 1974
• Court: New York Supreme Court

Page 79

364 N.Y.S.2d 79

79 Misc.2d 795

In the Matter of Kenneth McMOORE, Petitioner, v. Paul REGAN, Chairman, N.Y. State Board of Parole, Respondent.

Supreme Court, Dutchess County.

Nov. 21, 1974.

The Legal Aid Society, New York City, for petitioner.

Louis J. Lefkowitz, Atty. Gen. of N.Y., New York City, for respondent.

JOSEPH F. HAWKINS, Justice.

Petitioner's primary contention is that the Parole Board failed to state the grounds upon which it denied him parole. Additionally, he contends that since the denial was unlawful he should be granted parole retroactively.

In view of the recent ruling by the Court of Appeals in People ex rel. Donohoe v. Montanye, 35 N.Y.2d 221, 360 N.Y.S.2d 619, 318 N.E.2d 781, decided on October 7, 1974 during the pendency of the writ herein, the within proceeding, in my opinion, is no longer summarily disposed of, adversely to petitioner, as urged by respondent, by merely citing Matter of Hines v. State Board of Parole, 293 N.Y. 254, 56 N.E.2d 572 and the more recently decided Matter of Hamm v. Regan, 43 A.D.2d 344, 351 N.Y.S.2d 742 (3rd Dept.) Donohoe v. Montanye, supra, considered and promulgated additional procedural, due process safeguards in parole revocation hearings; however, one would be juridically astigmatic in failing to apperceive that its expanded parameters of due process, now to be accorded to prisoners in parole revocation proceedings, should also, albeit partially, be applied to their pre-parole endeavors. To require the Parole Board to inform the suppliant succinctly of the reasons for denying parole, thus continuing imprisonment, in my opinion, is not to impose an undue burden upon that agency; more importantly, it is consonant with a legally logical extrapolation of Donohoe.

The Parole Board presumably arrives at its decisions after due deliberation; consequently it can readily, however abbreviated, give its quintessential reasons. To do so, I believe, would be serving dual virtues: it would help dispel the apparently prevalent sentiment among many inmates, however ill-founded, that the hearings are arbitrary and capricious, largely founded on personal predilections; and, secondly, would obviate a plethora of Article 78 proceedings and writs for which there is usually no legal basis save that it provides the only modality whereby a prisoner can obtain some explanation. More importantly, I should also suppose that a curt, terse 'no' after years of anxious anticipation must be destructive of any real rehabilitative endeavors.

The respondent stresses Matter of Hamm v. Regan, 43 A.D.2d 344, 351 N.Y.S.2d 742 (3rd Dept. '74). I, however, note the most persuasive dissenting opinion by Justice Cooke, whose following language is particularly apposite and cogent to the issue at bar, although, En passent, and contained in a footnote at page 348, 351 N.Y.S.2d at page 747.

'2. Although it is unnecessary to decide and no decision is made herein as to whether a prisoner in a 'normal' proceeding is entitled to a similar statement of reasons in the event parole is denied, it is noteworthy that several courts have answered that question in the affirmative (see, e.g., Matter of Cummings v. Regan, 76 Misc.2d 137, 350 N.Y.S.2d 119; Matter of Cummings v. Regan, 76 Misc.2d 357, 350 N.Y.S.2d 842; United States ex rel. Johnson v. Chairman New York State Board of Parole, 363 F.Supp. 416 (E.D.N.Y.1973); United States ex rel. Harrison v. Pace, 357 F.Supp. 354 (E.D.Pa., 1973); Childs v. United States Board of Parole, 371 F.Supp. 1246 (D.D.C. Sept. 30, 1973, Bryant, J.); Monks v. New Jersey State Parole Board, 58 N.J. 238, 277 A.2d 193 (1971)).'

A careful consideration of Hamm, supra, discloses that the dissent was not on the ground of non-communication with the prisoner but rather that the basis upon which the Parole Board reversed itself and ultimately revoked parole, i.e., 'negative community reaction,' was invidious. In that connection, I believe dissent is particularly persuasive 'In order to comply with the rudimentary requirements of due process, the statement of reasons must recite the ultimate fact which led to rescission of parole 'with sufficient particularity to enable the prisoner to understand how he is expected to regulate his conduct and to enable a reviewing court to determine whether inadmissible factors have influenced the decision, and to determine whether discretion has been abused' (United States ex rel. Johnson v. Chairman, New York Board of Parole, supra, 363 F.Supp. p. 419.)' (43 A.D.2d p. 349, 351 N.Y.S.2d p. 748)

I do not hold hereby that the Parole Board must render voluminous detailed reports or betray confidential sources; I do hold that it no longer suffices for that agency to invoke People v. Hines, supra, and thereby, as it were, ring down an 'iron curtain,' impenetrable by either petitioner or his attorney until an Article 78 proceeding or a Writ of Habeas Corpus has been instituted and a hearing held. The Parole Board has sufficient talent or resources to provide its petitioners with a simple explanation, however condensed.

Granted that the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, held that in parole revocation proceedings the petitioner is not entitled to 'the full panoply of rights' as if it were a criminal proceeding; nevertheless, it did require that the parolee be informed of his alleged parole violations in the notice to be served upon him.

Matter of Cummings v. Regan, 76 Misc.2d 357, 350 N.Y.S.2d 842, submitted on petitioner's behalf, however, was subsequently reversed by the Appellate Division, Third Department (45 A.D.2d 415, 358 N.Y.S.2d 556). Significantly, the court in so doing, sharply divided with Mr. Justice Sweeney dissenting, joined by Mr. Justice Cooke.

There is now a conflict of authority on the subject for a Matter of Cummings v. Regan, 45 A.D.2d 222, 357 N.Y.S.2d 260. The Appellate Division, Fourth Department, decided some twenty days prior to the Third Department's opinion, supra, unanimously affirmed the holding that 'due process' and public policy of this State require that a meaningful statement of reasons be furnished to every applicant who has been denied parole release in the exercise of discretion delegated to the Board of Parole.' (p. 224, 357 N.Y.S.2d p. 263).

During the pendency of the within proceeding, the Appellate Division, Second Department and In re Paulsen v. New York State Bd. of Parole, 46 A.D.2d 661, 359 N.Y.S.2d 828, reversed Special Term which had 'annulled the determination and restored petitioner to parole supervision.' Paulsen, supra, involved a parole revocation proceeding and the parole board...