Partee v. Evans

• Decision Date: 28 June 2013
• Citation: 969 N.Y.S.2d 733,40 Misc.3d 896,2013 N.Y. Slip Op. 23216
• Court: New York Supreme Court
• Parties: In the Matter of the Application of Cedric PARTEE, 84–A–5009, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Andrea EVANS, Respondent.

40 Misc.3d 896

969 N.Y.S.2d 733

2013 N.Y. Slip Op. 23216

In the Matter of the Application of Cedric PARTEE, 84–A–5009, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

v.Andrea EVANS, Respondent.

Supreme Court, Albany County, New York.

June 28, 2013.

Cedric Partee, Self Represented Petitioner.

Eric T. Schneiderman, Attorney General for the State of New York, (Laura A. Sprague, Esq., of Counsel), Assistant Attorney General, for the Respondent.

PATRICK J. McGRATH, J.

In this proceeding pursuant to CPLR Article 78, petitioner challenges respondent's decision to deny discretionary release to parole supervision. Respondents have Answered and opposed the petition, and petitioner has submitted a Reply.

Petitioner is serving a sentence of twenty-five years to life after his conviction for Murder in the Second Degree. Petitioner and the decedent were involved in a drug-related argument, which turned physical. Petitioner had a knife, and chased the decedent for several blocks before he caught up to him, repeatedly stabbed him, and caused his death. Petitioner fled to Tennessee and was apprehended several weeks later. This represents petitioner's only New York offense. However, he has three other convictions from Tennessee, including an Aggravated Assault wherein petitioner repeatedly stabbed another person with a broken beer bottle. Petitioner has been in prison for the instant offense for over thirty years.

On June 5, 2012, petitioner appeared for his third regularly scheduled board appearance (he had one de novo hearing after his second appearance). The Commissioner noted that the Board was in possession of a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment performed on the petitioner, which ranked him as a “low” risk of future violence, arrest, and absconding. Further, the Commissioner noted that the Board had attempted to obtain petitioner's sentencing minutes, but that the sentencing Court had advised the Board that the transcript could not be located despite the exercise of due diligence. The Commissioners reviewed the facts underlying the instant offense, and petitioner acknowledged his guilt and remorse. He indicated that drug use lead him to commit the murder. The Commissioners reviewed his criminal history, which showed three arrests in Tennessee, including an assault and two burglaries. The petitioner claimed that he was incarcerated for each conviction, each for a year or less. The Commissioners discussed his programming and educational achievements, including a GED and an Associate's Degree. He has held various job assignments while incarcerated and was a clerk in the law library at the time of the hearing. Petitioner noted that he had “many hours of dental technology.” He noted that he had a wife, but wanted to re-enter society through a half-way house, so as not to burden his family with the regiments of parole. The Commissioner noted that petitioner had a Tier III ticket for violent conduct a few weeks prior to the hearing, which resulted in 30 days of keeplock, which indicated that petitioner was not the “aggressor.” Petitioner also received two (2) Tier II tickets in the past four years. The Commissioner noted that the Board had reviewed the detailed parole packet submitted by the petitioner and asked if petitioner had anything he wanted to add. Petitioner again emphasized that he was a different person today, that he realized his need for drug treatment.

The Board denied the application, noting that the instant offense was Murder, in which petitioner “argued with the victim and when he left your apartment, you followed and pulled a knife,” that he fled to another state, that his record spans two states and dates back to 1979, and includes “prior prison.” (Emphasis added). The Board took note of petitioner's COMPAS assessment, rehabilitative efforts, risks, needs, and “all other required factors.” However, the Board found that petitioner “clearly failed to benefit from prior rehabilitative efforts and has violent propensities.” The Board issued a 24 month hold.

Counsel for the Petitioner filed an administrative appeal on August 14, 2012. Petitioner then submitted a supplemental appeal, which was received by the Appeals Unit on August 27, 2012. The petitioner provides proof that petitioner's same attorney submitted a cover letter with the addendum, which states that it was “intended to be considered in addition to the Brief that I submitted several weeks ago.” The Board's decision was affirmed, making this proceeding ripe for review.

Respondent first argues petitioner did not exhaust his administrative remedies as to several of the issues raised in the petition because they were not included in his administrative appeal. Respondents note that 9 NYCRR 8006.2(e) states that “[o]nce counsel has entered an appearance on behalf of an inmate/violator, the appeals unit will not entertain correspondence from the inmate/violator concerning any aspect of the appeal, unless and until notice is received that counsel has been relieved of the assignment.” However, petitioner argues, and the Court agrees, that his attorney adopted the pro se submission as his own.

The petition, reply and memorandum of law argue that the 24 month hold was excessive; that the Board did not offer future guidance; that the Board did not consider petitioner's sentencing minutes; that the Board violated petitioner's due process rights; and that the decision was predetermined; that factual errors at the hearing require a new hearing; that the Commissioner made off the record prejudicial statements about the petitioner; and finally, that the Board failed to apply the new statutory requirements of Executive Law § 259–c(4).

Parole Release decisions are discretionary and, if made pursuant to statutory requirements, are not reviewable. Matter of De La Cruz v. Travis, 10 A.D.3d 789, 781 N.Y.S.2d 798 (3d Dept.2004); Matter of Collado v. New York State Division of Parole, 287 A.D.2d 921, 731 N.Y.S.2d 680 (3d Dept.2001). If the parole board's decision is made in accordance with the statutory requirements, the board's determination is not subject to judicial review. Matter of De La Cruz v. Travis, supra. Furthermore, only a “showing of irrationality bordering on impropriety” on the part of the Parole Board has been found to necessitate judicial intervention. See Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 (2000), quoting Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225 (1980). In the absence of the above, there is no basis upon which to disturb the discretionary determination made by the Parole Board. See Matter of Perez v. New York State of Division of Parole, 294 A.D.2d 726, 741 N.Y.S.2d 753 (3d Dept.2002). With these principles in mind, the court turns to the merits of petitioner's case.

With respect to the 24 month hold, the Court finds that the Board's decision is within its discretion and was supported by the record. Matter of Tatta v. State of New York Division of Parole, 290 A.D.2d 907, 737 N.Y.S.2d 163 (3d Dept.2002), lv. denied 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016.

Petitioner's argument that the Parole Board is required to advise petitioner and/or provide guidance with regard to the programs he should take, or rehabilitative efforts he should engage in to increase his chance for release at a future parole interview, has no merit. SeeExecutive Law § 259–i[2][a]; 9 NYCRR § 8002.3; Matter of Francis v. New York State Division of Parole, 89 A.D.3d 1312, 1313, 934 N.Y.S.2d 514 (3d Dept.2011); Matter of Freeman v. New York State Division of Parole, 21 A.D.3d 1174, 800 N.Y.S.2d 797 (3d Dept.2005).

With respect to the sentencing minutes, “[w]hile the Board is generally required to consider sentencing minutes in determining whether to grant an inmate parole, when those minutes are unavailable, its failure to do so does not mandate a new hearing. Here, the Board stated on the record that it had made diligent efforts to obtain petitioner's sentencing minutes but was unable to do so... Further, while there is no indication that a favorable parole recommendation was made beyond petitioner's assertion that the sentencing court made a favorable recommendation that he serve only the minimum sentence if he were a model prisoner...it cannot be said that the Board's inability to consider the minutes rendered its decision irrational so as to border on impropriety'.” Matter of LaSalle v. New York State Div. of Parole, 69 A.D.3d 1252, 1253, 893 N.Y.S.2d 706 (3d Dept.2010).

Petitioner incorrectly states that he has a liberty interest in release to parole. See Matter of Warren v. New York State Div. of Parole, 307 A.D.2d 493, 493, 761 N.Y.S.2d 883 (3d Dept.2003); Matter of Vineski v. Travis, 244 A.D.2d 737, 738, 664 N.Y.S.2d 391 (3d Dept.1997), lv. denied 91 N.Y.2d 809, 670 N.Y.S.2d 404, 693 N.E.2d 751.

There is no evidence in the record that the determination was predetermined.

Petitioner contends that the determination was based on two incorrect pieces of factual information. First, that the Board's decision incorrectly stated that the incident started at petitioner's apartment. The Court notes that during the hearing, the Commissioner stated that the incident took place at “ an apartment.” Petitioner also claims that the Board incorrectly noted that he had served time in “prison” prior to the instant offense, when in reality, he had only served three prior jail sentences. However, petitioner was able to “address and resolve any misconception at the hearing.” Jones v. New York State Div. of Parole, 24 A.D.3d 827, 829, 804 N.Y.S.2d 485 (3d Dept.2005); Rivera v. New York State Div. of Parole, 95 A.D.3d 1586, 944 N.Y.S.2d 807 (3d Dept.2012); Sutherland v. Evans, 82 A.D.3d 1428, 1429, 918 N.Y.S.2d 679 (3d Dept.2011). Further, there is nothing to indicate that the...