People ex rel. Silberstein v. Hammock

• Decision Date: 05 May 1982
• Citation: 450 N.Y.S.2d 687,113 Misc.2d 1030
• Parties: The PEOPLE of the State of New York ex rel. Patricia SILBERSTEIN, Petitioner, v. Edward HAMMOCK, Chairman of the New York State Board of Parole, Respondent.
• Court: New York Supreme Court

Page 687

450 N.Y.S.2d 687

113 Misc.2d 1030

The PEOPLE of the State of New York ex rel. Patricia

SILBERSTEIN, Petitioner, v. Edward HAMMOCK, Chairman of the New York State Board of

Parole, Respondent.

Supreme Court, Criminal Term,

New York County, Part 50.

May 5, 1982.

Loren I. Glassman, White Plains, for petitioner.

Robert Abrams, Atty. Gen., New York City (Grace A. Brannigan, Asst. Atty. Gen., New York City, of counsel), for respondent.

HAROLD J. ROTHWAX, Justice:

The petitioner is an inmate currently confined at the Bayview Correctional Facility in New York County. She has brought this writ of habeas corpus upon the ground that she has been unlawfully deprived of her conditional liberty by a decision of the New York State Board of Parole, issued March 4, 1982, which denied parole and extended petitioner's minimum period of incarceration by eighteen months. The petitioner claims that the Board acted unlawfully in that it failed to take into account all of the factors specified in Executive Law § 259-i for consideration of parole eligibility and relied exclusively upon the nature of the offense for which petitioner was initially sentenced. The effect of the Board's decision to extend the petitioner's incarceration for eighteen months was to terminate petitioner's participation in work release and furlough programs, which limit eligibility to those inmates who are eligible for parole within one year. (Correction Law § 851, subd. 2.) Respondent, represented by the Attorney General, argues that this proceeding is in the nature of mandamus (CPLR Art. 78), that the Board is presumed to have considered all of the factors enumerated in Executive Law § 259-i and that as the Board has not violated any "positive statutory requirement," its decision is beyond judicial review. (See Briguglio v. New York State Board of Parole, 24 N.Y.2d 21, 29, 298 N.Y.S.2d 704, 246 N.E.2d 512 mod. on other grounds, Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 [1978].)

Generally, an article 78 proceeding is the proper vehicle to review the action of the Parole Board in denying parole (see In the Matter of Russo v. New York State Board of Parole, 50 N.Y.2d 69, 427 N.Y.S.2d 982, 405 N.E.2d 225 In the Matter of Kaufman v. Henderson, 64 A.D.2d 849, 407 N.Y.S.2d 340 ). However, when the petition raises a colorable claim that the conditions of confinement have deprived the petitioner of a fundamental constitutional right, habeas corpus is an appropriate remedy (In the Matter of Kaufman, supra; see People ex rel. Perrello v. Smith, 47 A.D.2d 106, 108-110, 364 N.Y.S.2d 945 ).

The court finds that the instant petition raises issues cognizable within both the writ of mandamus (CPLR Art. 78) and the writ of habeas corpus (CPLR Art. 70). Specifically, the petitioner argues that in failing to comply with the requirements of Executive Law § 259-i in regard to the factors to be considered in evaluating an application for parole, the Parole Board acted arbitrarily and capriciously and in abuse of its discretion (CPLR 7803, subd. 3). The petitioner further alleges that the effect of the Board's determination was to terminate her participation in the work release and furlough programs without cause, which constituted a further constraint upon her liberty and deprived her of a statutory privilege without due process of law (compare People ex rel. Brown v. Johnston, 9 N.Y.2d 482, 485, 215 N.Y.S.2d 44, 174 N.E.2d 725 ). This distinction is not without a difference, which will appear more clearly below.

The history of the petitioner's confinement may be briefly stated. She was convicted upon a jury verdict on August 22, 1977 for manslaughter in the first degree (Penal Law § 125.20) and sentenced to an indeterminate term of from 7 years to 22 years, 7 months and 6 days by the Westchester County Court. Her sentence was found excessive and was reduced, upon appeal, to an indeterminate term of from 3 to 15 years (People v. Silberstein, 68 A.D.2d 894, 413 N.Y.S.2d 755 ). She first appeared before the Parole Board on March 17, 1980. The Board extended her minimum period of incarceration for two years, noting that "statutory limitation(s) preclude a longer hold." The reasons for the extension were "the vicious assaultive nature of the offense" and the "need to continue ... behavior modification programs ... counseling and therapy in order ... develop some stability prior to returning to the street." In September 1981 the petitioner was granted temporary release in a work release program (Correction Law, Art. 26) and employed as an assistant building manager with a realty firm, assigned to a building of five thousand tenants. She appears to have had an excellent work record. During the same period, the petitioner was assigned to a less restrictive facility (Lincoln Annex), had a number of furloughs to her parents' home in Yonkers, was in her thirteenth month of psychiatric therapy, and had accumulated thirty credits in engineering with a view to advancing her employment. Petitioner again appeared before the Parole Board on March 4, 1982. In addition to the foregoing information, the presiding Commissioner reviewed the facts underlying the conviction. The crime was apparently brutal. The victim was the petitioner's estranged boy friend, who was intoxicated at the time of the crime. The petitioner had no previous record. The Commissioner posed the issue as "how much is enough." He noted that despite petitioner's satisfactory adjustment, the deceased "has meaningful relations in some cemetery." It was the Commissioner's opinion that the crime would "not be typically you in the future." The decision to extend petitioner's incarceration for eighteen months was based upon the "extraordinary serious nature and circumstances of the ... offense" and took into account the statutory limitation upon the initial extension to two years "in light of the current three to fifteen year structure." The decision noted "her adequate institutional adjustment and status in work release and ... recommends her continued retention in temporary release program." The petitioner was thereupon returned to a more restrictive facility and her temporary release privileges were automatically terminated. (Correction Law, §§ 851, subd. 2, 852, subd. 3.) The Parole Board's determination was reviewed by the full Board on March 18, 1982, and was modified to the extent that the Board "recommend(ed) that she participate in a work release program when she again becomes statutorily eligible" (emphasis added).

The Board of Parole is obligated by statute to consider in addition to the nature of the offense, the inmate's institutional record, work assignments, and prior criminal history, if any. (Executive Law, § 259-i, subds. 12 Parole may be granted "if there is a reasonable probability that, if inmate is released, will live and remain at liberty without violating the law, and that release is not incompatible with the welfare of society." (Executive Law, § 259-i, subd. 2[c].)

The statute limits judicial review of Parole Board determinations to those instances in which the Board failed to act "in accordance with law" (Executive Law § 259-i, subd. 5). If the record before the Board supports its determination and the required procedural rules are followed, the court's power of review is exhausted (People ex rel. Van Fossen v. Dillon, 72 A.D.2d 166, 168-169, 424 N.Y.S.2d 550 ). Review for abuse of discretion requires "a showing of irrationality bordering on impropriety" ( In the Matter of Russo, supra, 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225).

A fair examination of the record of the March 4 proceeding shows that the Commissioners were apprised of all of the salient facts regarding the petitioner's good institutional record, excellent work and study history, compliance with previous conditions regarding therapy, absence of a prior record and the nature of the offense. It cannot be said that the Board proceeded capriciously upon an erroneous or inadequate factual basis. (Cf. In the Matter of Canales v. Hammock, 105 Misc.2d 71, 431 N.Y.S.2d 787, Richmond County Ct., 1980].) Despite the presiding Commissioner's apparent disagreement with the appellate reduction of petitioner's sentence to from 3 to 15 years, it cannot be said that the Board's findings were motivated by bias or other irrelevant considerations. (Cf. In Re Di Paolo, Misc.2d " 'require the Parole to act in accordance with judicial expectations ... would substantially undermine the decision to entrust release determinations to the and not the courts' " (In the Matter of Russo, supra, 50 N.Y.2d at 76-77, 427 N.Y.S.2d 982, 405 N.E.2d 225; citing with approval, United States v. Addonizio, 442 U.S. 178, 190, 99 S.Ct. 2235, 2243, 60 L.Ed.2d 805). The Court of Appeals continued, "while under our statute a court may initially set an MPI the ultimate determination whether to release a convict is for the Parole Board" (id. 50 N.Y.2d at 77, 427 N.Y.S.2d 982, 405 N.E.2d 225). Nor can the minimum presently set by the Parole Board (6 years, 6 months) be considered an abuse of discretion as a matter of law, given the nature of the offense (compare Penal Law §§ 70.02, subds. 4, 1 70.00, subd. 3).

Insofar as the petition states a claim under CPLR 7803, subdivision 3, it is dismissed.

The court, however, finds other factors persuasive with regard to the habeas corpus aspect of petitioner's application. In People ex rel. Brown v. Johnston, supra, 9 N.Y.2d 482, 215 N.Y.S.2d 44, 174 N.E.2d 725, where an inmate sentenced to Attica Correctional Facility for an indeterminate period of from one day to life challenged his transfer to Dannemora State Hospital, by means of a writ of habeas corpus, the Court of Appeals reversed the dismissal of the writ with the following observations: "any further restraint in excess of that permitted by the judgment or constitutional guarantees should be subject to inquiry. An individual, once...