Russo v. New York State Bd. of Parole
| Decision Date | 16 February 1979 |
| Citation | 98 Misc.2d 251,413 N.Y.S.2d 859 |
| Parties | Application of Frank RUSSO, Petitioner, for a Judgment Pursuant to CPLR Article 78 v. NEW YORK STATE BOARD OF PAROLE, Respondent. |
| Court | New York Supreme Court |
Warren S. Replansky, David Steinberg, Daniel J. Steinbock, Prisoners' Legal Services of New York, Poughkeepsie, for petitioner.
Robert Abrams, Atty. Gen., New York City, for respondent; Eugene P. O'Brien, New York City, of counsel.
This is an Article 78 proceeding in which petitioner seeks a judgment annulling the June 7, 1978 determination of respondent whereby petitioner's minimum period of incarceration before parole release consideration (MPI) was set at four years.
Petitioner's initial conviction of the crime of Criminal Conspiracy in the First Degree was reversed upon appeal (People v. Russo, 57 A.D.2d 578, 393 N.Y.S.2d 435). The crux of the appellate decision was the absence of any allegation in the indictment of the necessary overt act, as opposed to words, made in furtherance of the conspiracy to kill petitioner's father-in-law. Petitioner was subsequently reindicted and convicted of the crime of Criminal Solicitation in the First Degree. He was sentenced to an indeterminate sentence of four years.
Pursuant to § 259-i(1) of the Executive Law, the petitioner appeared before the Board of Parole for a hearing to set his MPI.
The mechanics of establishing an MPI are set forth in certain guidelines published by respondent which are based only on (1) the severity (level) of the crime, and (2) the past criminal history of an inmate. However, the tables reflecting these two factors are only a guide and the Board is directed to consider the many circumstances of each individual case (9 NYCRR 8001.3).
Petitioner had no prior criminal history, therefore his case was entitled to the highest position (lowest MPI) on the criminal history scale of the grid used by the respondent Board. The dispute in this proceeding has its primary root, however, in respondent's determination of the proper severity level of petitioner's criminal conduct.
For each of seven levels of severity (Level 1 containing the most severe crimes and Level 7 the least severe), certain representative offenses are specified in respondent's guidelines, e. g. for Level 1, homicide and kidnapping, for Level 7, reckless endangerment and possession of marijuana.
§ 3.00(b) of respondent's guidelines indicates that if the particular criminal conduct is not listed therein, such as is the case with petitioner's offense, the proper level may be obtained by comparing its severity with those of similar offenses listed. In those cases where an offense had not been consummated, § 3.00(d) mandates that an "attempt or conspiracy" to commit that offense shall be assigned to the next less serious offense level to that in which the consummated offense is specified.
Respondent placed petitioner's crime in Level 2. In its defense to this proceeding, the Board indicates that this decision was based on the "conspiracy" provisions of § 3.00(d), i. e., conspiracy to commit intentional homicide must be placed in the level of offense immediately below intentional homicide, to wit: Level 2.
Respondent had no authority to resurrect in its administrative proceeding the crime of conspiracy after the appellate division had vacated petitioner's plea and dismissed his indictment for this crime (People v. Russo, supra). Petitioner was reindicted and pled to the distinctly different and less serious offense of criminal solicitation, and it is this offense which had to be considered by the respondent. Since the offense was not a conspiracy, and not one specifically enumerated in the guidelines, the provisions of § 3.00(b) and not subdiv. (d) should have been used by respondent and a...
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Russo v. New York State Bd. of Parole
...to be no authority for a Parole Board to exceed the restrictions imposed by the Legislature upon the sentencing court" (98 Misc.2d 251, 254, 413 N.Y.S.2d 859, 861.) The Appellate Division affirmed (69 A.D.2d 520, 419 N.Y.S.2d 166), noting that sentencing Judges had come to expect that where......
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Rogers v. Hammock
...petitioner relies on the decision of Sweeny, J. at Special Term, Dutchess County dated February 16, 1979 in Matter of Russo v. New York State Board of Parole, Sup., 413 N.Y.S.2d 859, to that Neither Penal Law § 70.00(3)(c) nor Executive Law § 259-i sets any absolute limitations on the range......
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Cherry v. New York State Bd. of Parole
...even in part on conduct giving rise to crimes which are dismissed against a defendant, would be improper. (See Russo v. N.Y.S. Board of Parole, Co.Ct., 413 N.Y.S.2d 859). However, in the instant case, the source of the questioning at the MPI hearing was petitioner's own statements in his pr......
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Torres v. Hammock
...he was actually placed by the Parole Board. At the time this motion was argued, petitioner relied upon Matter of Russo v. New York State Bd. of Parole, 98 Misc.2d 251, 413 N.Y.S.2d 859, affd. 69 A.D.2d 520, 419 N.Y.S.2d 166. Because the Russo case was on appeal to the Court of Appeals, the ......