Montane v. Evans

• Decision Date: 13 March 2014
• Citation: 116 A.D.3d 197,2014 N.Y. Slip Op. 01659,981 N.Y.S.2d 866
• Parties: In the Matter of Yotuhel MONTANE, Respondent, v. Andrea EVANS, as Chair of the Division of Parole, Appellant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 197

981 N.Y.S.2d 866

2014 N.Y. Slip Op. 01659

In the Matter of Yotuhel MONTANE, Respondent,

v.Andrea EVANS, as Chair of the Division of Parole, Appellant.

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

March 13, 2014.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for appellant.

Hollyer Brady, LLP, New York City (Orlee Goldfeld of counsel), for respondent.

Before: PETERS, P.J., STEIN, McCARTHY and GARRY, JJ.

PETERS, P.J.

Appeal from a judgment of the Supreme Court (Mott, J.), entered June 28, 2013 in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Board of Parole denying petitioner's request for parole release.

Petitioner is currently serving a prison sentence of 3 to 9 years following his plea of guilty to conspiracy in the second degree in connection with his involvement in a major drug dealing operation. He appeared before the Board of Parole for the first time in April 2012, at which time the Board declined to release him to parole supervision and ordered him held for an additional 24 months. Petitioner filed an administrative appeal and, when it was not decided within four months, he commenced this CPLR article 78 proceeding. Supreme Court granted the petition, finding that the Board improperly focused almost exclusively on the seriousness of petitioner's crime and failed to properly consider other relevant factors. The court further concluded—relying on its prior decision in Matter of Morris v. New York State Dept. of Corr. & Community Supervision (40 Misc.3d 226, 963 N.Y.S.2d 852 [2013] )—that the Board had failed to promulgate “written rules” regarding risks and needs assessments as mandated by the 2011 amendment to Executive Law § 259–c (4) and that, in the absence thereof, the Board's determination is “unlawful, arbitrary and capricious.” Accordingly, Supreme Court annulled the Board's determination and directed that a new hearing be conducted. Respondent appeals.

Respondent contends that the 2011 amendment to Executive Law § 259–c (4) does not require the promulgation of formal rules and regulations regarding the procedures to be utilized in making parole release determinations, and that a written memorandum prepared and circulated to the members of the Board satisfied the requirements of the statute. Respondent further asserts that, on the merits, the Board's decision denying parole should have been upheld, as it was issued in compliance with the statutory requirements of Executive Law § 259–i and was not irrational. We address these arguments in turn and, finding merit to each, we reverse.

Prior to the 2011 amendment, Executive Law § 259–c (4) required the Board to establish “written guidelines” to be used in making parole release decisions, and provided that such guidelines “may consider the use of a risk and needs assessment instrument” to assist the Board (L. 2011, ch. 62, § 1, part C, § 1, subpart A, § 38–b). Respondent accordingly adopted 9 NYCRR 8001.3(a), which included a grid setting forth guidelines to be used in determining the customary total time served before release. This Court concluded that such guidelines were “not meant to establish a rigid, numerical policy invariably applied across-the-board to all [inmates] without regard to individualized circumstances or mitigating factors” (Matter of Lue–Shing v. Travis, 12 A.D.3d 802, 803, 784 N.Y.S.2d 259 [2004],lv. denied4 N.Y.3d 705, 792 N.Y.S.2d 898, 825 N.E.2d 1093 [2005] [internal quotation marks and citations omitted] ). Accordingly, we concluded that the “written guidelines” did not constitute “rules” or “regulations,” and thus their validity was not dependent upon filing with the Secretary of State ( id. at 803–804, 792 N.Y.S.2d 898, 825 N.E.2d 1093).

The 2011 amendment to Executive Law § 259–c (4) deleted the reference to “guidelines” and instead required the Board to establish “written procedures” to be used in making parole release decisions ( see L. 2011, ch. 62, § 1, part C, § 1, subpart A, § 38–b). Such written procedures are intended to “assist” Board members “in determining which inmates may be released to parole supervision” (Executive Law § 259–c [4] ). The amendment further specified that the procedures “shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the [B]oard [and] the likelihood of success of such persons upon release,” and directed the development of an instrument capable of making a risk and needs assessment (Executive Law § 259–c [4], as amended by L. 2011, ch. 62, § 1, part C, § 1, subpart A, § 38–b; seeCorrection Law § 112[4], as amended by L. 2011, ch. 62, § 1, part C, § 1, subpart A, § 19; Executive Law § 259–i[2] ). Respondent issued a memorandum to Board members, dated October 5, 2011, specifically addressing the amendment to Executive Law § 259–c (4) and providing guidance concerning application of the statutory guidelines in light of the changes effectuated by the amendment.

Starting our analysis, as we must, with an examination of the language of the statute itself ( see Commonwealth of the N. Mariana Is. v. Canadian Imperial Bank of Commerce, 21 N.Y.3d 55, 60, 967 N.Y.S.2d 876, 990 N.E.2d 114 [2013];Matter of Raynor v. Landmark Chrysler, 18 N.Y.3d 48, 56, 936 N.Y.S.2d 63, 959 N.E.2d 1011 [2011] ), we find no indication that the amendment to Executive Law § 259–c (4) required the promulgation of formal rules and regulations. The plain language of the statute simply requires that the Board establish “written procedures” (Executive Law § 259–c [4] ). Had the Legislature intended to require that formal rules and regulations be promulgated, it could have explicitly said so, as it has in numerous other statutory provisions-including within neighboring provisions of the Executive Law addressing the Board's authority and obligations ( seeExecutive Law §§ 259–j [“The chair( ) of the board of parole shall promulgate rules and regulations governing the issuance of discharges from community supervision”]; 259–k [“The board shall make rules for the purpose of maintaining the confidentiality of records, information contained therein and information obtained in an official capacity by officers, employees or members of the board of parole”]; see e.g.Agriculture and Markets Law §§ 16–a, 63; Correction Law §§ 201, 203, 500–b, 803, 806; Education Law §§ 101–a, 112, 3602; Executive Law §§ 99, 146, 312, 314; Railroad Law § 97[4]; Judiciary Law § 212[2][b] ). The Legislature's failure to do so here is a significant indication that it had no such intention to require that formal rules be promulgated ( see Commonwealth of the N. Mariana Is. v. Canadian Imperial Bank of Commerce, 21 N.Y.3d at 60–61, 967 N.Y.S.2d 876, 990 N.E.2d 114;People v. Ortega, 69 N.Y.2d 763, 765, 513 N.Y.S.2d 103, 505 N.E.2d 613 [1987];Matter of Hicks v. New York State Div. of Hous. & Community Renewal, 75 A.D.3d 127, 132, 901 N.Y.S.2d 186 [2010];Matter of Batti v. Town of Austerlitz, 71 A.D.3d 1260, 1262, 896 N.Y.S.2d 513 [2010];see alsoMcKinney's Cons. Laws of N.Y., Book 1, Statutes §§ 74, 94).

Moreover, it is settled that “ ‘only a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers constitutes a rule or regulation’ that must be promulgated in conformance with article IV, § 8 of the State Constitution and in substantial compliance with the State Administrative Procedure Act” (Matter of Medical Socy. of State of N.Y. v. Serio, 100 N.Y.2d 854, 868, 768 N.Y.S.2d 423, 800 N.E.2d 728 [2003], quoting Matter of New York City Tr. Auth. v. New York State Dept. of Labor, 88 N.Y.2d 225, 229, 644 N.Y.S.2d 463, 666 N.E.2d 1336 [1996];see Matter of Senior Care Servs., Inc. v. New York State Dept. of Health, 46 A.D.3d 962, 964, 847 N.Y.S.2d 264 [2007] ). As we observed when addressing the “written guidelines” requirement under Executive Law former § 259–c (4), “decisions of the Board require flexibility and discretion, and the guidelines used to arrive at these decisions are not meant to establish ‘a rigid, numerical policy invariably applied across-the-board to all [inmates] without regard to individualized circumstances or mitigating factors' ” (Matter of Lue–Shing v. Travis, 12 A.D.3d at 803, 784 N.Y.S.2d 259, quoting Matter of Schwartfigure v. Hartnett, 83 N.Y.2d 296, 301, 610 N.Y.S.2d 125, 632 N.E.2d 434 [1994] ). Likewise, the “written procedures” required by the 2011 amendment were intended only to “ assist members of the [Board] in determining which inmates may be released to parole supervision” (Executive Law § 259–c [4] [emphasis added] ).

Pursuant to the 2011 amendments to the Executive Law, the Board must still conduct a case-by-case factual review of each inmate's application for release by consideration of the eight factors set forth in Executive Law § 259–i(2)(c)(A), but now such review must include an instrument that measures rehabilitation and the likelihood of success on parole ( seeExecutive Law §§ 259–c [4]; 259–i[2][c] ). Notably, the “written procedures” mandated by the amendment to Executive Law § 259–c (4) “shall require” the Board to consider the statutory factors set forth in Executive Law § 259–i in determining whether “[d]iscretionary release on parole” should be granted (Executive Law § 259–i[2][c][A] ). As such, they are clearly not intended to be determinative of whether an inmate could obtain release to parole. Indeed, the Legislature stressed that the 2011 amendments were not intended to interfere with the Board's “fundamental ... authority to make release decisions based on the [B]oard members' independent judgment and application of statutory criteria” (L. 2011, ch. 62, § 1, part C, § 1, subpart A, § 1). Accordingly, we conclude that the 2011 amendment to Executive Law § 259–c (4) do not require...