McNamara v. Coughlin
| Decision Date | 15 June 1994 |
| Citation | 616 N.Y.S.2d 886,162 Misc.2d 504 |
| Parties | In the Matter of John McNAMARA, Petitioner, v. Thomas A. COUGHLIN III, Commissioner New York State Department of Correctional Services; James Recore; Brian Fischer, Supt., Queensboro Correctional Facility; Mid-Orange Correctional Facility; Carl D. Berry, Supt., Woodbourne Correctional Facility; Edward Mitchell; and New York State Department of Correctional Services, Respondents. |
| Court | New York Supreme Court |
Scopetta & Sieff, Abigail Pessen, New York City, for petitioner.
Robert Abrams, New York Atty. Gen., (Kathie Ann Whipple and Vida M. Alvy of counsel) New York City, for respondents.
Respondents move to dismiss the amended petition ("petition") in this CPLR Article 78 proceeding.
Petitioner is the brother of a homicide victim, Darren McNamara. John Bonizio ("Bonizio"), was hired by Peter Rosner to avenge an insult to his daughter Cheryl Rosner. On August 25, 1982 Bonizio and an unknown companion carried out their contract by bludgeoning Darren McNamara to death. Bonizio was convicted of first degree manslaughter and sentenced in January 1984 to a term of imprisonment of six to eighteen years, which he is serving. At his sentencing, the assistant district attorney stated that Bonizio was involved with organized crime and that he had been sentenced to a concurrent term of imprisonment for certain felonies related to organized crime. Petitioner alleges that Bonizio, and Bonizio's associates, threatened his life, that of a witness to the crime and that of an undercover police officer.
All parties agree that Bonizio is currently an inmate of Queensboro Correctional Facility. Bonizio has become eligible for parole three times. On each occasion, parole has been denied after consideration inter alia of the strenuous opposition thereto on the part of the Attorney General, petitioner and others. Petitioner, as the victim's representative is entitled, pursuant to Executive Law § 259-i(2)(c)(v), to present his views at the parole hearing of his brother's killer. Parole has been denied each time and the next hearing has been scheduled for two years hence.
Petitioner seeks an order (1) which declares that permission for Bonizio to participate in a temporary release program constitutes an abuse of discretion and the permission should be revoked or in the alternative, (2) which limits Bonizio's absences from the facility to periods which conform to the Correction Law. In addition, he requests (3) an order which declares the Day Reporting Center Program to be in conflict with the Correction Law and (4) an order which directs respondents to notify petitioner and his family of any temporary release of Bonizio.
Respondents have cross-moved to dismiss the petition. They claim that inasmuch as Bonizio never participated in the Day Reporting Center Program, the petition fails to state a cause of action. They also argue that the petition, should be dismissed on the ground that petitioner lacks standing.
The question of how much time Bonizio has spent in or out of prison on temporary release is one of some confusion. Petitioner claims that he was told by Deputy Commissioner Philip Coombe Jr. that during the first half of 1993, until the latest denial of parole, Bonizio was in a Day Reporting Center Program. Respondents claimed that Bonizio has never participated in such a program, but is a participant in a "work release program which consists of furloughs to an approved residence and employment, both of which have been verified." Nowhere in respondents' papers is there an exact account or any documentary proof of what time Bonizio spends outside the facility. Petitioner claims that Commissioner Coombe has told him that since Bonizio's last parole denial, he has spent five days and nights of every week in prison and two days and nights on furlough, at home. Petitioner claims there is no authorization for such an arrangement in the Correction Law or the New York Code of Rules and Regulations. Petitioner also claims that Bonizio's liberal releases have been tantamount to parole without the requisite notice to the petitioner.
Correction Law § 852 authorizes the State Commissioner of Correctional Services to set up a temporary release program for prison inmates who are within two years of becoming eligible for parole. Pursuant to statutory authority, the Commissioner has promulgated regulations governing the eligibility of inmates to participate in temporary release programs (see, Correction Law §§ 73, 112, 852; 7 NYCRR Part 1900 et. seq.). The temporary release program is comprised of a work release program, a furlough program, a community services program, an industrial training leave, an educational leave or a leave of absence (Correction Law § 851[9]; 7 NYCRR 1900). "Unlike parole status, work release does not allow an inmate complete release from incarceration...." (State ex rel. Hammer v. Keane, infra., 143 Misc.2d at 134, 539 N.Y.S.2d 624). A work release program allows inmates the privilege of leaving the premises of an institution for a period not exceeding fourteen hours in a day for the purpose of on-the-job training or employment (Correction Law § 851[3]; 7 NYCRR 1900). A furlough program allows an inmate the privilege of leaving the premises of an institution for a period not exceeding seven days for the purpose of seeking employment, maintaining family ties, solving family problems, seeking post release housing, or attending a short-term educational or vocational training course (Correction Law § 851[4]; 7 NYCRR 1900). The furlough program, as it applies to a "general confinement inmate", is limited to a total of twenty-eight days per year (7 NYCRR 1900.3(c)(2)(i)(a)). Applications by inmates for any temporary release program are decided by a Temporary Release...
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