People v. Annucci

• Decision Date: 16 November 2018
• Docket Number: KAH 18–00378,1130
• Citation: 89 N.Y.S.3d 491,167 A.D.3d 199
• Parties: The PEOPLE of the State of New York EX REL. Ariel GARCIA, Petitioner–Appellant, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, and James Thompson, Superintendent, Collins Correctional Facility, Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 199

89 N.Y.S.3d 491

The PEOPLE of the State of New York EX REL. Ariel GARCIA, Petitioner–Appellant,

v.Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, and James Thompson, Superintendent, Collins Correctional Facility, Respondents–Respondents.

1130

KAH 18–00378

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

Entered: November 16, 2018

ROBERT S. DEAN, CENTER FOR APPELLATE LITIGATION, NEW YORK CITY (JAN HOTH OF COUNSEL), FOR PETITIONER–APPELLANT.

BARBARA D. UNDERWOOD, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBERG OF COUNSEL), FOR RESPONDENTS–RESPONDENTS.

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, CURRAN, AND TROUTMAN, JJ.

OPINION AND ORDER

Opinion by Troutman, J.:

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

When an incarcerated person, who was previously convicted of a sex offense, is conditionally released or released on parole, the Board of Parole (Board) must under certain circumstances require, as a mandatory condition of such release, that he or she refrain from entering school grounds (see Executive Law § 259–c [14 ] ). The issue before us is whether the school grounds mandatory condition must be applied to all level three sex offenders, or only to those serving a sentence for an offense enumerated in Executive Law § 259–c (14). We hold that this condition must be applied to all level three sex offenders. We therefore conclude that the judgment should be affirmed.

I

Petitioner was convicted in 1994 of rape in the third degree ( Penal Law § 130.25[2] ), a crime for which he was eventually adjudicated as a level three sex offender. Years later, petitioner was again incarcerated, and is currently serving a prison term of 3½ to 7 years for a conviction of robbery in the third degree (§ 160.05). Although petitioner had a conditional release date of December 20, 2016, he remains incarcerated. Petitioner's conditional release was denied because the proposed address in the Bronx that he supplied to the Board did not comply with the school grounds mandatory condition.

Petitioner commenced this proceeding pursuant to CPLR article 70, seeking a writ of habeas corpus on the ground that his incarceration beyond his conditional release date is illegal. He contended, inter alia, that he is not subject to the school grounds mandatory condition because he is serving a sentence for robbery in the third degree, a crime not enumerated in Executive Law § 259–c (14). In their return, respondents contended, inter alia, that the plain language of that statute requires the school grounds mandatory condition to be applied to all level three sex offenders, not only those serving a sentence for an enumerated offense. Supreme Court denied the petition.

II

We note at the outset that, if we were to accept petitioner's interpretation of Executive Law § 259–c (14), he would be entitled to immediate release (see generally People ex rel. Cassar v. Margiotta, 150 A.D.3d 1254, 1255, 57 N.Y.S.3d 167 [2d Dept. 2017] ). "A person who is serving ... [a] sentence of imprisonment shall, if he or she so requests, be conditionally released from the institution in which he or she is confined when the total good behavior time allowed to him or her, pursuant to the provisions of the correction law, is equal to the unserved portion of his or her term" ( Penal Law § 70.40[1][b] ). There is no dispute that petitioner's good behavior time exceeds the unserved portion of his term of incarceration, and therefore he is entitled to conditional release upon his request.

III

Initially, we reject respondents' contention that we should defer to the Board's interpretation of the relevant statute. Judicial deference to an administrative agency tasked with enforcing a statute may be appropriate where the interpretation of the statute involves "specialized ‘knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom’ " ( Matter of KSLM–Columbus Apts., Inc. v. New York State Div. of Hous. & Community Renewal, 5 N.Y.3d 303, 312, 801 N.Y.S.2d 783, 835 N.E.2d 643 [2005] ), or " ‘where the question is one of specific application of a broad statutory term’ " ( Matter of O'Brien v. Spitzer, 7 N.Y.3d 239, 242, 818 N.Y.S.2d 844, 851 N.E.2d 1195 [2006] ; see Matter of Nearpass v. Seneca County Indus. Dev. Agency, 152 A.D.3d 1192, 1193, 60 N.Y.S.3d 732 [4th Dept. 2017] ). In contrast, where, as here, "the question is one of pure statutory interpretation ‘dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency and its interpretive regulations are therefore to be accorded much less weight’ " ( KSLM–Columbus Apts., Inc., 5 N.Y.3d at 312, 801 N.Y.S.2d 783, 835 N.E.2d 643 ; see Matter of Monroe County Pub. Sch. Dists. v. Zyra, 51 A.D.3d 125, 133, 853 N.Y.S.2d 821 [4th Dept. 2008] ). The issue presented here "is one of statutory construction and not of deference to [the Board's] determination" ( KSLM–Columbus Apts., Inc., 5 N.Y.3d at 312, 801 N.Y.S.2d 783, 835 N.E.2d 643 ).

IV

Nevertheless, the Board's interpretation is correct. "It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature" ( Patrolmen's Benevolent Assn. of City of N.Y. v. City of New York, 41 N.Y.2d 205, 208, 391 N.Y.S.2d 544, 359 N.E.2d 1338 [1976] ; see Matter of Anonymous v. Molik, 32 N.Y.3d 30, 37, 84 N.Y.S.3d 414, 109 N.E.3d 563 [2018] ). "The ‘literal language of a statute’ is generally controlling unless ‘the plain intent and purpose of a statute would otherwise be defeated’ ... Where ‘the language is ambiguous or where literal construction would lead to absurd or unreasonable consequences that are contrary to the purpose of the [statute's] enactment,’ courts may ‘[r]esort to legislative history’ " ( Anonymous, 32 N.Y.3d at 37, 84 N.Y.S.3d 414, 109 N.E.3d 563 ).

Here, the parties dispute the interpretation of Executive Law § 259–c (14), which provides, in relevant part:

"[W]here a person serving a sentence for an offense defined in article one hundred thirty, one hundred thirty-five or two hundred sixty-three of the penal law or section 255.25, 255.26 or 255.27 of the penal law¹ and the victim of such offense was under the age of eighteen at the time of such offense or such person has been designated a level three sex offender pursuant to subdivision six of section one hundred sixty-eight-l of the correction law, is released on parole or conditionally released pursuant to subdivision one or two of this section, the board shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds ..."

Petitioner contends that "such person" unambiguously refers to a person serving a sentence for one of the enumerated offenses and that the plain language of the statute therefore provides that the school grounds mandatory condition must be imposed on only those level three sex offenders currently incarcerated for an enumerated offense. Respondents assert that the statute is ambiguous, and that the legislative history, along with the consensus interpretation of numerous agencies and organizations, supports the proposition that the school grounds mandatory condition applies to all level three sex offenders regardless of the crime for which they are currently incarcerated. We agree with respondents.

At first glance, we acknowledge that the phrase "such person" appears to have the meaning that petitioner urges. Respondents assert, however, that it is not the only rational interpretation. Although the word "such" often serves a particularizing role, it "can also be used simply to refer back to something previously mentioned but not ‘particularized’ ... Where both a ‘particularizing’ and a ‘non-particularizing’ interpretation of ‘such’ are possible, it need not be the case that the particularizing interpretation prevails" ( North Broward Hosp. Dist. v. Shalala, 172 F.3d 90, 95 [D.C. Cir.1999], cert denied 528 U.S. 1022, 120 S.Ct. 532, 145 L.Ed.2d 413 [1999] ; see University Med. Ctr. of S. Nev. v. Thompson, 380 F.3d 1197, 1201 [9th Cir.2004] ; see generally Federal Trade Commn. v. Tuttle, 244 F.2d 605, 611 [2d Cir.1957], cert denied 354 U.S. 925, 77 S.Ct. 1379, 1 L.Ed.2d 1436 [1957] ).

The statutory language allows for "such person" to be understood in varying degrees of particularity. Aside from the construction urged by petitioner, "such person" may be read to refer simply to "a person," a construction that would read the word "such" out of the statute. Alternatively, it may be read to refer to a person serving a sentence for an enumerated offense against a minor, a construction that would render superfluous the later reference to level three sex offenders. It may also, however, be read to refer to "a person serving a sentence." Under that last construction, ...