"The only purported evidence offered against Ms. Leonor at the hearing were the three letters," Greenberg says in his appellate brief. "Beyond the fact that they were hearsay, and the authors were not subjected to cross examination, they did not even contain any matters of an evidentiary nature. Rather, the letters were, for the most part, angry diatribes that castigated Ms. Leonor for exercising her right to a trial and the Appellate Division for reducing her sentence."
Greenberg argues parole was initially granted because of Leonor's institutional record and rehabilitation, factors that did not change between the time her release was approved and the time it was rescinded.
"Once Ms. Leonor's impending release was made public, the tabloid articles and family members' letters unfairly and improperly pressured the Board to order a rescission hearing," Greenberg argues. "Other than family members' discontent with the Board's release decision, there was no materially significant new information that could possibly justify the rescission of the release decision."
The state's brief is due Jan. 30.
Peter Cutler, spokesman for the Department of Corrections and Community Supervision, declined to comment.
Before the Leonor case is decided, the Third Department is likely to issue its opinion in Costello, which involves a defendant, Pablo Costello, who took part in a robbery where his codefendant shot and killed an officer shortly after Costello had fled from the scene.
Costello had been approved for parole and was within four days of walking out of prison when the New York City Patrolmen's Benevolent Association (PBA) and the New York Daily News complained that the victim's survivors had not been offered an opportunity to state their views. A rescission hearing was held and Costello's release was withdrawn.
The Third Department case is unusual in that six former parole commissioners submitted a joint amicus brief arguing that the "personal, subjective feelings" of family members do not amount to "substantial evidence of significant information not previously known," the standard for rescission (NYLJ, Nov. 26).
In response, the New York State Attorney General's Office maintains that the long-term and continuing impact on survivors is a factor the parole board can take into consideration.
@|John Caher can be contacted at email@example.com.