Russo v. New York State Bd. of Parole
| Decision Date | 06 August 1979 |
| Citation | 419 N.Y.S.2d 166,69 A.D.2d 520 |
| Parties | In the Matter of Frank RUSSO, Respondent, v. NEW YORK STATE BOARD OF PAROLE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Warren S. Replansky and Daniel J. Steinbock, Poughkeepsie, for respondent.
Robert Abrams, Atty. Gen., New York City (George D. Zuckerman and Charles A. Bradley, New York City, of counsel), for appellant.
Leon B. Polsky, New York City (Malvine Nathanson, New York City, of counsel), for the Legal Aid Society, amicus curiae.
Before DAMIANI, J. P., and SUOZZI, MARGETT and MANGANO, JJ.
The New York State Board of Parole appeals from a judgment of the Supreme Court, Orange County, which (1) annulled its determination setting the petitioner's minimum period of imprisonment at a length greater than one-third of his maximum sentence which had been imposed after trial; and (2) remanded the matter to the board for a new hearing at which the board was to set the minimum period of imprisonment at a length not in excess of one-third of the four-year maximum sentence imposed. The appeal brings up for review so much of an order of the same court as, upon granting reargument, adhered to its original determination. The appeal from the judgment should be dismissed as academic.
The order should be affirmed insofar as reviewed.
Petitioner Russo was convicted of criminal solicitation in the first degree and was sentenced to an indeterminate term of imprisonment with a maximum of four years. Pursuant to subdivision 1 of section 259-i of the Executive Law, petitioner appeared before the Board of Parole shortly after his incarceration for a hearing to determine his minimum period of imprisonment. The board set his minimum at a term of four years the same as the maximum term which was set by the trial court and thus effectively denied him any possibility for early release prior to the expiration of his full sentence.
Under section 70.00 (subd. 3, pars. (b) and (c)) of the Penal Law, the sentencing court has the option of imposing an indeterminate sentence with a stated maximum and minimum term, or it may set only a maximum term, leaving the determination of the appropriate minimum to the Board of Parole. Where the Court decides to set a minimum, such minimum may not be set at a length more than one-third of the maximum term imposed (see Penal Law, § 70.00, subd. 3, par. (b)).
Effective January 1, 1978, new laws regarding the administration and operation of the Board of Parole were enacted by the Legislature and approved by the Governor (see Executive Law, art. 12-B, § 259 Et seq.). This article has had the effect of transferring the board from the Corrections Department to the Executive Department. It has also made certain fundamental changes in the operating procedures of the board.
Under former section 212 (subd. 2-a) of the Correction Law the Board of Parole had the implicit power to set a minimum period of imprisonment at a length greater than one-third the maximum by virtue of a provision which called for automatic administrative review of such a decision. This provision was not, however, carried over to the Executive Law, and petitioner argues that without such provision, it can no longer...
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Russo v. New York State Bd. of Parole
...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 ......
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Torres v. Hammock
...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 attorneys for the respective parties agreed to hold the matter in ab......
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Brown v. New York State Board of Parole
...on the merits (see Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 427 N.Y.S.2d 982, 405 N.E.2d 225, revg. 69 A.D.2d 520, 419 N.Y.S.2d 166). MOLLEN, P. J., and HOPKINS, MANGANO and COHALAN, JJ., ...
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Grossman v. Parole Board of the State of New York
...of Rodriguez v. New York State Bd. of Parole, 72 A.D.2d 655, 421 N.Y.S.2d 437 (1979); but, see, contra, Matter of Russo v. New York State Bd. of Parole, 69 A.D.2d 520, 419 N.Y.S.2d 166. All concur, except Cardamone, J. P., who dissents and votes to reverse the judgment and remit the matter,......