Russo v. New York State Bd. of Parole

• Decision Date: 24 April 1980
• Citation: 50 N.Y.2d 69,427 N.Y.S.2d 982,405 N.E.2d 225
• Parties: , 405 N.E.2d 225 In the Matter of Frank RUSSO, Respondent, v. NEW YORK STATE BOARD OF PAROLE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 982

427 N.Y.S.2d 982

50 N.Y.2d 69, 405 N.E.2d 225

In the Matter of Frank RUSSO, Respondent, v. NEW YORK STATE BOARD OF PAROLE, Appellant.

Court of Appeals of New York.

April 24, 1980.

Robert Abrams, Atty. Gen. (Frederick R. Walsh, Asst. Atty. Gen. and Shirley Adelson Siegel, Sol. Gen., of counsel), for appellant.

Warren S. Replansky and David Leven, Poughkeepsie, for respondent.

Leon B. Polsky and Malvine Nathanson, New York City, for The Legal Aid Soc. of the City of New York, amicus curiae.

OPINION OF THE COURT

MEYER, Judge.

When a court in sentencing a convicted defendant fixes a maximum but no minimum sentence, may the Parole Board, acting under section 259-i of the Executive Law fix as the minimum period of incarceration (MPI) a period in excess of one third of the maximum, even though the sentencing court could not have done so? ¹ Has a sentenced defendant a cognizable liberty interest in the right to seek parole so that a minimum sentence in excess of that which could have been fixed by a court violates his right to due process? We hold that the Parole Board may impose an MPI in excess of that which a Judge could have fixed and that its doing so violates no liberty interest of constitutional dimension. We therefore reverse.

Petitioner was initially charged with conspiracy in the first degree (a class B felony, Penal Law, § 105.15) in that he offered $10,000 to another individual to murder his father-in-law. Although he initially pleaded guilty to the charge, petitioner's conviction was later reversed because there had been no overt act (57 A.D.2d 578, 393 N.Y.S.2d 435). He was subsequently convicted after trial of criminal solicitation in the first degree and sentenced to a maximum term of four years imprisonment. No MPI was fixed by the court. ²

A three-member panel of the Parole Board was therefore convened in order to fix petitioner's MPI. Under the Executive Law the Parole Board is required to establish written guidelines for use in making MPI decisions and to issue a detailed written statement of the reasons if the board departs from its guidelines in fixing an MPI. ³ Under the guidelines then in effect, when, as in petitioner's case, the offense had not been consummated, the "attempt or conspiracy" to commit the crime would be rated one category lower than that to which the substantive offense was assigned. The Parole Board, on the theory that the solicitation of a crime should receive similar placement, initially placed petitioner's crime in offense severity level two, which called for an MPI within the range of 28 to 38 months. Thereafter, considering that this range was unduly lenient for the solicitation of a homicide, the board set petitioner's MPI at four years, the same as his maximum sentence, and issued a statement explaining its action. ⁴

Petitioner then commenced this article 78 proceeding to review the board's determination, contending that its decision to set his MPI at four years was arbitrary and capricious, that it conflicted with the legislative intent behind the statutory sentencing scheme and with the sentencing Judge's purpose in abstaining from the imposition of an MPI, and that it violated his due process right to a meaningful opportunity for parole. Special Term granted the petition, reasoning that since petitioner's conspiracy charge had been dismissed, the Parole Board should not have pigeonholed petitioner's offense at one category lower than the solicited offense of homicide. It held further that on remand the board could not fix petitioner's MPI in excess of one third of his maximum sentence, inasmuch as the sentencing court could not have done so and "(t)here appears 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 they did not impose an MPI the convicted defendant would receive parole consideration at or before the one-third point in his sentence, an expectation which, that court suggested, is buttressed by notions of due proces. That conclusion is, however, without foundation.

The Supreme Court has held, and as a matter of State constitutional law we agree, that because a person's rightful liberty interest is extinguished upon conviction, there is no inherent constitutional right to parole (Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668). The court recognized, however, as do we, that when a State adopts a sentencing scheme which creates a legitimate expectation of early release from prison, there then exists a liberty interest deserving of constitutional protection (id., at pp. 11-13, 99 S.Ct. p. 210).

The distinction lies in whether the statute admits of only the bare possibility that parole will be granted or affirmatively promises that parole will be extended to the inmate in the absence of prohibitive findings or circumstances (see Greenholtz v. Inmates of Neb. Penal & Correctional Complex, supra, at pp. 9-13, 99 S.Ct. pp. 2105-2106). It is premised in part on Judge Henry Friendly's insightful comment that, " '(t)here is a human difference between losing what one has and not getting what one wants' " (Friendly, Some Kind of Hearing, 123 U. of Pa.L.Rev. 1267, 1296, cited at 442 U.S. at p. 10, supra, 99 S.Ct. at p. 2105), and upon the realization that a legislative promise of parole, albeit conditional, encourages justifiable reliance upon its terms. Our task, then, is to examine New York's sentencing provisions to determine whether a convicted person has a legitimate expectation that he will be considered for parole at or before the time he has served one third of his maximum sentence or at least at some time before his full sentence is served.

As the Appellate Division noted (69 A.D.2d, at p. 522, 419 N.Y.S.2d 166), under the former Correction Law provisions the sentencing Judge was subject to the same one-third limit that he is now, but power in a Parole Board panel to exceed that limit was implied from the requirement of automatic administrative review by the entire Parole Board of the panel's decision (People ex rel. Johnson v. Montanye, 42 A.D.2d 1041, 348 N.Y.S.2d 617; cf. Hunter v. Fogg, 2 Cir., 616 F.2d 55 (1980); Walker v. Oswald, 2 Cir., 449 F.2d 481, 484). From the absence of that automatic review provision the Appellate Division inferred that the Parole Board is now subject to the same limitation as is a Judge. We do not believe that inference can be drawn.

The bill which Governor Carey signed into law in 1977 was designed to broaden the Parole Board's discretion in fixing minimum sentences, while structuring the exercise of that discretion by requiring the board to adopt guidelines to regulate its operations. In approving the bill, the Governor stated (N.Y.Legis.Ann.1977, p. 319): "By removing needless statutory restraints on the Board's power to fix minimum sentences, the bill enables the fixing of realistic minimum sentences which take into account the gravity of the offense and the offender's past criminal history, among other factors. Concomitantly, it permits a reasonable expectation of parole when a minimum sentence, fixed in accordance with the guidelines, has been served, provided the inmate fulfills the requirements of statute." (Emphasis added.)

The new legislation directs in section 259-i (subd. 1, pars. (a), (b)) of the Executive Law that where a court fails to impose an MPI, the Parole Board shall do so in accordance with its promulgated guidelines, or shall issue a written explanation of its reasons for departing from the guidelines. The law contains no restriction limiting the Parole Board to an MPI which a court could have imposed or requiring that the board establish an MPI of less than the full sentence. Since the purpose of the law, as stated by the Governor, was to remove needless statutory restraints on the board's power to fix MPI's, and there is provision in subdivision 4 of section 259-i for appeal and paragraph (a) of subdivision 1 of the...