Williams v. N.Y. State Div. of Parole

• Decision Date: 18 March 2010
• Citation: 899 N.Y.S.2d 146,71 A.D.3d 524
• Parties: In re Everett WILLIAMS, Petitioner-Respondent, v. NEW YORK STATE DIVISION OF PAROLE, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 146

71 A.D.3d 524

In re Everett WILLIAMS, Petitioner-Respondent,

v.NEW YORK STATE DIVISION OF PAROLE, Respondent-Appellant.

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

March 18, 2010.

Andrew M. Cuomo, Attorney General, New York (Richard O. Jackson of counsel), for appellant.

Steven Banks, The Legal Aid Society, New York (Robert C. Newman of counsel), for respondent.

TOM, J.P., ANDRIAS, SAXE, MANZANET-DANIELS, JJ.

Order and judgment (one paper), Supreme Court, New York County (Edward H. Lehner, J.), entered January 12, 2009, which, in an article 78 proceeding, modified a special condition of petitioner's parole which forbade him from having any contact with his wife without the permission of his parole officer, to permit petitioner to see his wife during non-curfew hours so long as the wife wished to see him, reversed, on the law, without costs, the special condition reinstated, and the proceeding dismissed on the merits.

On April 3, 2007, petitioner was released on parole subject toseventeen "Special Conditions." These included, SC 13(h), under which petitioner agreed to abide by a curfew established by his parole officer (P.O.), and SC 13( l ), under which petitioneragreed that "I will not associate in any way or communicate by any means with [my] wife, Mary Provost, without the permission of the P.O." While denying petitioner's application to vacate the curfew and to allow him to live with his wife, the Supreme Court held that although SC 13( l ) was not a per se violation of petitioner's constitutional rights, it was arbitrary to deny petitioner visitation during non-curfew hours as long as the wife consented thereto. In so ruling, the court noted the wife's desire to see petitioner, that petitioner's rape conviction occurred in 1982 and that none of petitioner's domestic violence related arrests resulted in convictions. We now find that the Supreme Court improperly substituted its discretion for that of respondent New York State Division of Parole (the Division).

Because there is no federal or state constitutional right to be released to parole supervision before serving a full sentence, the state has discretion to place restrictions on parole release ( see Matter of M.G. v. Travis, 236 A.D.2d 163, 167, 667 N.Y.S.2d 11 [1997], lv. denied 91 N.Y.2d 814, 676 N.Y.S.2d 127, 698 N.E.2d 956 [1998] ). Pursuant to Executive Law § 259-c[2] and 9 NYCRR § 8003.3, special conditions may be imposed by the Division before or after a parolee's release.

The imposition of a special condition is discretionary in nature and ordinarily beyond judicial review as long as it is made in accordance with law and no positive statutory requirement is violated ( see Executive Law § 259-i; 9 NYCRR 8003.2; see also Matter of Briguglio v. New York State Bd. of Parole, 24 N.Y.2d 21, 28-29, 298 N.Y.S.2d 704, 246 N.E.2d 512 [1969]; People ex rel. Stevenson v. Warden of Rikers Is., 24 A.D.3d 122, 123, 806 N.Y.S.2d 185 [2005], lv. denied 6 N.Y.3d 712, 816 N.Y.S.2d 747, 849 N.E.2d 970 [2006] ). If the condition is rationally related to the inmate's past conduct and future chances of recidivism, Supreme Court has no authority to substitute its own discretion for that of the individuals in charge of designing the terms of a petitioner's parole release ( see Matter of M.G. v. Travis, 232 A.D.2d at 169, 667 N.Y.S.2d 11; Matter of Gerena v. Rodriguez, 192 A.D.2d 606, 596 N.Y.S.2d 143 [1993]; Matter of Dickman v. Trietley, 268 A.D.2d 914, 915, 702 N.Y.S.2d 449 [2000] ).

SC 13( l ), imposed in furtherance of the Division's "zero-tolerance" policy regarding domestic violence, codified in the Division's Policy and Procedures Manual No. 9401.07, was made in the lawful exercise of official discretion, violated no statutory requirement and was neither arbitrary or capricious in view of petitioner's criminal history, which included a conviction for rape, a classification as a Level 2 Sex Offender, violations of protective orders obtained by his formerwife and by his present wife, Provost, and two arrests for assaulting and harassing Provost ( see Ciccarelli v. New York State Div. of Parole, 11 A.D.3d 843, 844, 784 N.Y.S.2d 173 [2004]; Ahlers v. New York State Div. of Parole, 1 A.D.3d 849, 850, 767 N.Y.S.2d 289 [2003]; Matter of Wright v. Travis, 297 A.D.2d 842, 746 N.Y.S.2d 850 [2002] ). The foregoing demonstrates petitioner's extensive history of violence against women, and there is a direct connection between the orders of protection taken out by Provost and petitioner's two arrests for assaulting and harassing her, and the Division's determination that unsupervised contact with Provost is incompatible with rehabilitation and may lead to future conflict with her ( see Matter of Moller v. Dennison, 47 A.D.3d 818, 849 N.Y.S.2d 645 [2008], lv. denied 10 N.Y.3d 708, 859 N.Y.S.2d 392, 889 N.E.2d 79 [2008] ). In Moller, a special condition prohibited the parolee from associating or communicatingwith his wife without the permission of the chairman. The chairman summarily denied the parolee's application to reside with his wife based on the existence of a policy strictly prohibiting the approval of a proposed residence with any victim of domestic violence perpetrated by the parolee, even if the victim claimed that there had been reconciliation. On appeal, the parolee's petition to lift the special condition or to allow him to live with his wife was denied on the merits.

As to petitioner's constitutional challenge, it was rejected by the Supreme Court and petitioner has not cross-appealed from that determination. Were we to consider petitioner's contention that SC 13( l ) "seriously interferes" with the exercise of his "fundamental constitutional right to marry," we would find, for the reasons set forth above, that SC 13( l ) was "reasonably related" to petitioner's criminal history and future chances of recidivism, and thus permissible ( see Matter of Ariola v. New York State Div. of Parole, 62 A.D.3d 1228, 880 N.Y.S.2d 367 [2009], lv. denied 13 N.Y.3d 707, 890 N.Y.S.2d 444, 918 N.E.2d 959 [2009]; People v. Whindleton, 54 A.D.3d 422, 423, 862 N.Y.S.2d 295 [2008], lv. denied 12 N.Y.3d 822, 881 N.Y.S.2d 30, 908 N.E.2d 938 [2009] ). Even if a heightened level of scrutiny is warranted because a fundamental right is being burdened ( see Tremper v. Ulster County Dept. of Probation, 160 F.Supp.2d 352 [ND N.Y.2001] ), here, unlike Tremper, there is a direct relationship between petitioner's criminal history and the challenged condition of parole, which does not impose a complete impediment to plaint...