Morris v. N.Y. State Dep't of Corr. & Cmty. Supervision

• Decision Date: 12 April 2013
• Parties: In the Matter of Henry “Hank” MORRIS, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Brian Fischer, Commissioner of New York State Department of Corrections and Community Supervision, Department of Corrections and Community Supervision, New York Board of Parole, Andrea W. Evans, Chairwoman of the New York Board of Parole, Respondents.
• Court: New York Supreme Court

40 Misc.3d 226

963 N.Y.S.2d 852

2013 N.Y. Slip Op. 23135

In the Matter of Henry “Hank” MORRIS, Petitioner,

v.NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Brian Fischer, Commissioner of New York State Department of Corrections and Community Supervision, Department of Corrections and Community Supervision, New York Board of Parole, Andrea W. Evans, Chairwoman of the New York Board of Parole, Respondents.

Supreme Court, Columbia County, New York.

April 12, 2013.

Orlee Goldfeld, Esq., Hollyer Brady, LLP, New York, for Petitioner.

Eric T. Schneiderman, Esq., Attorney General of the State of New York, Albany, Brian J. O'Donnell, Esq. Assistant Attorney General, of Counsel, for Respondents.

RICHARD MOTT, J.

Petitioner filed this Article 78 proceeding to challenge Respondents' August 21, 2012, decision denying him release on parole.

Petitioner, age 59, is serving a 1 1/3 to 4 year sentence ¹. He was convicted in New York County on February 17, 2011. At or about the time of his sentencing, Petitioner made full restitution in the amount of $19 million, was stripped of his licenses and barred from participating in the securities industry, and faced automatic disbarment by virtue of his conviction. The Department of Probation recommended that Petitioner be sentenced to a term of probation; the prosecution requested an unspecified term of incarceration. The sentencing Court found that “it is not likely that Morris will do it again in the future.”

Petitioner was presumptively eligible for parole on June 18, 2012 (see, Correction Law § 805), and when he met the Parole Board on August 21, 2012, he already had served 25 months ², far in excess of the 12–to–18 month guideline, as confirmed in his Inmate Status Report. He had no disciplinary infractions, and a COMPAS evaluation determined he had the lowest possible risk to recidivate. Nevertheless, he was denied parole. The panel stated:

Denied 9 months. Next appearance, November, 2012.

Parole denied.

After a personal interview, record review, and deliberation, this panel finds your release is incompatible with the public safety and welfare. Required statutory factors have been considered, including your risk to the community, rehabilitation efforts, and your needs for successful community reintegration.

Your instant offense involved a guilty plea to General Business Law Section 352–c(6), wherein you engaged in a systematic series of fraudulent stock market-related transaction. Your course of conduct over a period of multiple years show a disregard for your ethical responsibilities as a licensed security broker and attorney.

Consideration has been given to your receipt of an Earned Eligibility Certificate, good behavior, program accomplishments (as able), and document submissions.

Due to your actions over a period of time and deceitful nature of those activities which placed the integrity of the New York State Common Retirement Fund at risk, your release at this time is denied. There is a reasonable probability you would not live and remain at liberty without violating the law.

It is well settled that release on parole is a discretionary function of the Parole Board and that its determination will not be disturbed by the Court unless it is shown that the Board's decision is irrational “bordering on impropriety” and that the determination was, thus, arbitrary and capricious. Matter of Silmon v. Travis, 95 N.Y.2d 470, 718 N.Y.S.2d 704, 741 N.E.2d 501 (2000); Matter of King v. NYS Division of Parole, 190 A.D.2d 423, 598 N.Y.S.2d 245 (1st Dept.1993), aff'd 83 N.Y.2d 788, 610 N.Y.S.2d 954, 632 N.E.2d 1277 (1994). In reviewing the Board's decision, the Court must also examine whether the Board's discretion was properly exercised in accordance with the parole statute. Matter of Thwaites v. New York State Board of Parole, 34 Misc.3d 694, 934 N.Y.S.2d 797 (2011).

Executive Law § 259–i(2)(c) provides general criteria the Board must consider. And the statute provides the Board with specific factors to consider in determining whether the general criteria have been met. See, Executive Law § § 259–i(2)(c)(A)(i–viii).

The 2011 Amendment

Executive Law § 259–c(4) was amended in 2011 to require the Parole Board to promulgate new procedures in making parole release decisions. These required procedures “shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the Board, the likelihood of success of such persons upon release, and assist members of the state Board of Parole in determining which inmates may be released to parole supervision.” Id.

This statutory change sought to modernize the work of the Parole Board by requiring the Board to adopt procedures that incorporate social science research in assessing post-release and recidivism risks. Matter of Thwaites v. New York State Board of Parole, supra, citing Genty, “Changes to Parole Law Signal Potentially Sweeping Policy Shift”, N.Y.L.J., September 1, 2011. Specifically, the statute replaced “static, past focused ‘guidelines' with more dynamic present and future-focused risk assessment ‘procedures.’ ” Id., 34 Misc.3d at 699, 934 N.Y.S.2d 797. Moreover, “[t]he Legislature, by enacting an amendment of a statute, changing the language thereof, is deemed to have intended a material change in the law.” Statutes § 193. See, Matter of Stein, 131 A.D.2d 68, 71, 520 N.Y.S.2d 157 (2d Dept.1987). Accordingly, Respondents' assertions that the legislative amendment maintained the status quo ante must be rejected.

The Board's Rule Making Function And The Requirement To File

Before the 2011 amendment, Executive Law § 259–c(4) required the establishment of “written guidelines” for use in making parole determinations. The statute did not require Respondent to engage in rule making. Accordingly, Respondent adopted 9 NYCRR § 8001.3(a), including a grid setting forth sentence guidelines. The guidelines explicitly stated that the time ranges in the grid “are merely guidelines, [and m]itigating or aggravating factors may result in decisions above or below the guidelines” (See, Matter of Lue–Shing v. Travis, 12 A.D.3d 802, 803–4, 784 N.Y.S.2d 259 (3d Dept.2004)). Thus, the guidelines adopted under the old statute were not “regulations” ( Id., citing Matter of Alca Indus. v. Delaney, 92 N.Y.2d 775, 778–9, 686 N.Y.S.2d 356, 709 N.E.2d 97 (1999)), and their validity was not dependent upon filing with the Secretary of State. Id. at 804, 686 N.Y.S.2d 356, 709 N.E.2d 97.

The amended, 2011 version of Executive Law § 259–c(4), on the other hand, required Respondent to engage in rule making. The amended statute mandated the establishment of “written procedures” which, inter alia, “shall incorporate risk and needs principles to measure the rehabilitation of persons appearing before the board” and “the likelihood of success of such persons upon release.” By its terms ³ the 2011 amendment of Executive Law § 259–c(4) mandated the adoption of new rule(s) or regulation(s), i.e. the adoption of “a fixed, general principle to be applied by an administrative agency ...” Matter of Lue–Shing v. Travis, 12 A.D.3d at 803, 784 N.Y.S.2d 259, citing Matter of New York City Transit 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) quoting Matter of Roman Catholic Diocese v. New York State Dept. of Health, 66 N.Y.2d 948, 951, 498 N.Y.S.2d 780, 489 N.E.2d 749 (1985). Put simply, the amended statute required that Respondent develop written procedures that implement risk and needs principles, determine the likelihood of an inmate's success upon release, and adopt those procedures as an exercise of its rule making power.

Respondent misreads the amendment. By positing that “where an agency renders determinations based on a case-by-case basis analysis of the facts of a particular matter, there is no requirement that the guidelines it employs be promulgated as rules or regulations (citations omitted).” However, unlike the former Section § 259–c(4), the amendment does not authorize Respondents to write guidelines which might include “interpretive statements and statements of general policy...[that] are merely explanatory” (SAPA § 102(2)(b)(iv)). Rather, the amendment requires Respondents to “[e]stablish written procedures,” i.e. enumerate the materials the Board would use to determine an inmate's likelihood of success upon release.

Notwithstanding the plain language of the amendment, and the requirement that such procedures be in effect by October 1, [40 Misc.3d 231]2011, Respondent inexplicably still has adopted no new procedures ⁴. To the contrary, Respondent untenably states, “ Executive Law § 259–c(4) dictates neither how new written procedures are to be established, nor in what manner risk and needs principles are to be incorporated within them.” O'Donnell Affidavit, ¶ 15; Munkwitz Affirmation, ¶ 20. Further, Respondent sophistically argues that the October 5, 2011, Memorandum written by Respondent Evans (“The Evans Memorandum”) “serves as” the statutorily required procedures (O'Donnell Affidavit ¶ 17; Tracy Affirmation, ¶¶ 12, 20) even though the Evans Memorandum neither has been adopted as a formal rule (see, 9 N.Y.C.R.R. § 8000.1), nor has it been filed with the Secretary of State. See, e.g., Executive Law § 259–c(11) (requiring filing of rules with the Secretary of State), SAPA § § 202, 203, Rent Stabilization Assn. v. Higgins, 83 N.Y.2d 156, 175, 608 N.Y.S.2d 930, 630 N.E.2d 626 (1993). The Court rejects these assertions.

The Effect Of The Amendment

Respondents have flip-flopped concerning the affect of this amendment. On one hand, the October 5, 2011 Evans Memorandum asserted that despite amendment of the statute, “[p]lease know that the standard for assessing the appropriateness for release, as well as the statutory criteria you must consider has not changed.” See, Tracy Affirmation, ¶ 15. A month later, on November 10, 2011, Respondent Evans testified...