Cite as: Douglas v. NYSDCCS, 6213-13, NYLJ 1202616197039, at *1 (Sup., CO, Decided August, 2013)


Justice Richard Mott, J.

Decided: August, 2013

Additional Respondents

Anthony Annucci, Acting Commissioner of New York State Department of Corrections and Community Supervision, Brian Fischer, Former Commissioner of New York State Department of Corrections and Community Supervision, New York Board of Parole, Andrea W. Evans, Chairman of the New York Board of Parole


Petitioner: Paul Weber, Esq., Artrip & Weber, PLLC, Cornwall, NY.

Respondents: Colleen D. Galligan, Esq., Assistant Attorney General, of Counsel, Eric T. Schneiderman, Esq., Attorney General of the State of New York, Albany, NY.

Papers Considered:

1. Notice of Petition, dated June 11, 2013; Verified Petition, dated June 11, 2013, with Exhibits… A-F;

2. Answer, dated June 29, 2013, with Exhibits A-I, Affirmation of William B. Gannon, Esq., July 8, 2013 with Exhibits A-E; Affirmation of Colleen Galligan, Esq., dated July 26, 2013;

3. Reply Affirmation of Paul N. Weber, dated August14, 2013 with 3 Exhibits.

For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.




Petitioner filed this Article 78 proceeding to challenge Respondents' October 10, 2012 decision denying him release on parole. He is serving an indeterminate sentence of 1 to 3 years following his conviction after a jury trial in Ulster County on August 23, 20111.

Petitioner is a former police officer with no prior criminal record and his convictions solely are for non-violent offenses. He is married with two children and has no history of violence, alcohol, sex or drug abuse.

Petitioner was presumptively eligible for parole2 when he met the Parole Board. He had served 12 months of a 14-24 month guideline and also was eligible for merit termination of his sentence3. See, Inmate Status Report. His COMPAS evaluation determined him to be a low risk for felony violence and the lowest possible risk of arrest and absconding.

Petitioner is serving his sentence in protective custody and to date has incurred no disciplinary infractions whatsoever. His Inmate Status Report confirms that he presents no supervision or investigation concerns and has programmed appropriately. He has multiple employment offers and a stable home and family environment to return to upon being released. Nevertheless, Petitioner was denied parole, albeit by a split decision. The panel





Denied — hold for 17 months, next appearance Date: 03/2014

After careful review of the record, your appearance before the Parole Board and deliberation, parole is denied.

The instant offense insurance fraud 3rd and falsifying business records 1st involved you being found guilty of reporting a car/deer accident to your insurance company resulting in payment for car repairs. The record indicates in fact that your vehicle was involved in a collision with another vehicle which resulted in the injury of two occupants. During your interview you declined to discuss the instant offense as you have an appeal pending.

Consideration has been given to any rehabilitation efforts, however, you have not completed any meaningful correctional programs including ART. Risk to the community, needs for successful reintergration, sentencing minutes, numerous letters of support, parole plans and receipt of any EEC. Pursuant to the statutory admonition that parole release shall not be granted as a reward for good conduct or efficient performance of duties while confined but after consideration of specific factors enumerated in the law, it is the determination of this panel that your release at this time is incompatible with public safety and if released there is a reasonable probability you would not live and remain at liberty without violating the law.

Curiously, the Board scheduled Petitioner's next parole hearing 17 months hence and subsequent to his February 8, 2014 conditional release date. Given his exemplary prison record, Petitioner, in all likelihood will already have been released prior to his next parole hearing, which in this Court's view, clearly evinces the Board's intent to prolong his imprisonment for as long as possible4. See, Correction Law §803(1)(b).

The Parole Board's Discretion

It is well settled that release on parole is a discretionary function of the Parole Board




and that its determination will not be disturbed by the Court unless it is shown that the Board's decision is irrational "bordering on impropriety" and that the determination was, thus, arbitrary and capricious. Matter of Silmon v. Travis, 95 N.Y.2d 470 (2000); Matter of King v. NYS Division of Parole, 190 A.D.2d 423 (1st Dept. 1993) aff'd 83 N.Y.2d 788 (1994). In reviewing the Board's decision, the Court must also examine whether the Board's discretion was properly exercised in accordance with the parole statute. Matter of Thwaites v. New York State Board of Parole, 34 Misc.3d 694 (2011).

The Parole Board is required to consider a number of factors in determining whether an inmate should be released on parole. Executive Law §259-i, Matter of Malone v. Evans, 83 A.D.3d 719 (2d Dept. 2011) and cases cited. While the Board need not expressly discuss each of these factors in its determination (see, Matter of King v. New York State Division of Parole, 83 N.Y.2d 788, 790 (1994)) or afford these factors equal weight (see, Matter of Wan Zhang v. Travis, 10 A.D.3d 828 (3d Dept. 2004)), it is the obligation of the Parole Board to give fair consideration to each of the statutory factors, and where, as here the record convincingly demonstrates that the Board in fact failed to consider the proper factors, the Court must intervene. Matter of King v. New York Division of Parole, 190 A.D.2d at 431.

Focusing Exclusively On The Crimes And Alleged Failure To Complete Appropriate Programs

Here, the Court finds that the Board's decision focused entirely on Petitioner's crimes and his alleged failure to complete appropriate programming.5




While the seriousness of the crime remains acutely relevant in determining whether Petitioner should be released, the record in this case demonstrates conclusively that the Board failed to take into account and fairly consider any of the other relevant statutory factors. See, e.g., Matter of Silmon v. Travis, 95 N.Y2d at 476-7. Indeed, the Board's perfunctory mention of matters it considered is inadequate in the circumstances of this case to demonstrate that it weighed or fairly considered the required statutory factors. See, e.g., Matter of Rios v. New York State Division of Parole, 836 N.Y.S.2d 503, 2007 WL 846561 (Kings County, 2007).

Specifically, the record demonstrates that the Board irrationally failed to consider and weigh the aforementioned, relevant factors, which strongly supported Petitioner's release on parole. See, page 2, infra.

The Crimes

Although Petitioner was acquitted of leaving the scene of an accident, a felony (VTL §600(2)(c)(i)) and declined to discuss his crimes because his direct appeal was pending, a Commissioner nevertheless inquired directly about "the accident" and specifically concerning the extent of injuries sustained therein (Transcript, p.12). Such information was prejudicial and irrelevant. In fact, the Board extensively quoted Petitioner's sentencing




minutes, including the sentencing judge's statement that the crimes of which he was convicted were "done selfishly to protect and conceal the commission of another crime"(emphasis added), i.e. leaving the scene, a crime of which Petitioner was acquitted (Transcript, p. 7-9). Further the Board stated, "The record indicates, in fact, that your vehicle was involved in a collision with another vehicle which resulted in the injury of two occupants." Transcript, 17. This Court is very concerned with the Board's preoccupation with the offense for which Petitioner was acquitted and the strong probability that such consideration undermined the fairness of his hearing. See, e.g., People v. Grant, 94 A.D.3 d 1193, 1141-2 (2d Dept. 2012) and cases cited.

Alleged Failure To Complete Appropriate Programming

The record demonstrates conclusively that Petitioner completed all required programs. His Inmate Status Report indicates that he is assigned as a Porter and has "programmed accordingly." The report does not show that Petitioner was ever eligible for or assigned to Aggression Replacement Training (ART). Nevertheless, at his parole hearing, when a Commissioner asked whether DOCCS had recommended any programs for him, Petitioner responded, "The only program that's been recommended, to my knowledge, is ART." When asked, "Where are they in the process as far as getting you into ART," Petitioner responded, "I don't know, ma'am." Transcript, 5. Notwithstanding Petitioner's impression of what may have been recommended, the Inmate Status Report confirms that he had not been referred to the ART program, and therefore, could not be expected to participate in it6. See, Most importantly, this Court




cannot imagine any circumstances in which Petitioner, convicted only of non-violent crimes and having no history of violent proclivities, would be required to participate in ART, a program designed to address the needs of aggressive, violent inmates7. Here, not only were the convictions classified as non-violent, nothing in the record remotely hints that Petitioner ever engaged in violence or aggression. See, e.g., Matter of Wiggins v. Joy, 4 6 A.D.3d 1035 (3d Dept. 2007).

Despite numerous factors militating for Petitioner's release on parole, the Board relied upon the aforesaid improper considerations to conclude, "Your release at this time is incompatible with public safety and if released there is a reasonable probability you would not live and remain at liberty without violating the law." Such an arbitrary decision can be reached solely by ignoring statutorily required factors. See, e.g., Matter of Peckham v. Calogero, 12 N.Y.3d 424, 431 (2009)("An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts.") See, e.g., Matter of Wallman v. Travis, 18 A.D.3d 304 (1st Dept. 2005), Matter of Coaxum v. New York State Board of Parole, 14 Misc.3d 661 (Bronx County, 2006), Matter of Weinstein v. Dennison, 7 Misc.3d 1009(A), 2005 WL 856006 (New York County, 2005).

The 2011 Statutory Amendment

Petitioner asserts, inter alia, that the Parole Board did not follow applicable statutes and regulations regarding risks and needs assessment as mandated by the 2011 amendment of Executive Law §259-c(4). This Court agrees. Further, in the absence of




written regulations indicating the adoption of a rule or regulation with regard to assuring an inmate an appropriate risk assessment and/or an opportunity to review it before the Board considers it (see, e.g., Matter of Cotto v. Evans, 2013 WL 486508 (St. Lawrence County, 2013)), the Board cannot satisfy the requirement of Executive Law §259-c(4) that Respondents adopt written rules and regulations to implement the statutory changes8. Accordingly, for the reasons set forth in Matter of Morris v. New York State Department of Corrections and Community Supervision, 963 N.Y.S.2d 852, 2013 NY Slip Op 23135 amended 39 Misc.3d 1213(A), 2013 WL 168901 (2013), the determination of the Parole Board is hereby vacated as unlawful, arbitrary and capricious9.

The matter is remanded to the Board which, on or before August 23, 2013, shall hold a new parole hearing before a new panel consistent with this Decision and Order and issue a decision within two days thereof, a copy of which forthwith shall be provided to the Court.

This constitutes the Decision and Order of this Court. The Court is forwarding the original Decision and Order directly to Petitioner's counsel, who is required to comply with the provisions of CPLR §2220 with regard to filing and entry thereof. A photocopy of the Decision and Order is being forwarded to all other parties who appeared in the action. All original motion papers are being delivered by the Court to the Supreme Court Clerk for transmission to the County Clerk.




Dated: August, 2013

Claverack, New York

1. Petitioner was convicted of Insurance Fraud in the Third Degree (Penal Law §176.20) and Falsifying Business Records in the First Degree (Penal Law §175.10).

2. Correction Law §805 "creates a presumption in favor of parole release of any inmate, who like petitioner, has received a certificate of earned eligibility and has completed a minimum term of imprisonment of eight years or less (citations omitted)." Wallman v. Travis, 18 A.D.3d 304, 307 (1st Dept. 2005).

3. Correction Law §205 permits DOCCS to grant a merit termination of a sentence from presumptive release provided, inter alia, "it is determined by the department that such merit termination is in the best interests of society." Such relief would terminate Petitioner's sentence and his incarceration. See, Correction Law §205(2).

4. The Board's decision, denying parole and scheduling his next parole hearing subsequent to his conditional release date, is followed by a recitation of conditions to be imposed upon Petitioner's release, thereby further manifesting the Board's intent that he never be released on parole. Transcript, p. 16.

5. Respondents argue that because one or more of Petitioner's arguments were not raised in his administrative appeal, same cannot be raised here. Galligan Affirmation, ¶¶22-23. Respondents do concede, however, that Petitioner exhausted his claims that (1) the Board failed to consider and properly weigh required statutory factors, (2) that it did not consider the amendments to the Executive Law, and (3) that there are no established written procedures to incorporate risk assessment, and therefore, each is now properly before the Court. See, Galligan Affirmation, ¶¶21-22. Even assuming arguendo that Petitioner failed to exhaust one or more of his claims here, such argument has been waived because CPLR §3018(b) requires that "a party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading," and the failure to plead an affirmative defense results in its being waived. CPLR §3211(e). Here, Respondents' Answer, ¶¶14-16, fails to raise lack of exhaustion as an Affirmative Defense, and by reason thereof, such defenses are deemed to have been waived.

6. It is indeed a cruel irony that the Board noted that Executive Law §259-i(2)(c) forbade granting Parole as a reward for Petitioner's good conduct or efficient performance of duties while incarcerated, but predicated its denial of parole on his failure to participate in a program to which he had never been assigned or admitted.

7. The DOCCS web site states that the ART program is "designed to assist inmates in identifying and controlling their aggressive behavior" and is DOCCS's "only recognized program that satisfies aggression/violent behavior program needs for inmates." Admission to ART requires (1) an assessment as having the need for the program and (2) assignment by the prison's Program Committee, neither of which is found in the record.

8. Respondents' submissions argue that the 2011 amendments to Executive Law §259-c(4) "do not represent a departure from the law as it existed prior to the amendments" (Galligan Affirmation, ¶74). Further, Respondents argue that Respondent Andrea Evans's October 5, 2011 Memorandum "serves as the written procedures of the Board pursuant to section 259-c(4) of the Executive Law." Gannon Affirmation, ¶11; Galligan Affirmation, ¶¶72, 94. This Court categorically rejects the assertion that the Board is in compliance with the requirements of the 2011 amendments. Matter of Morris v. New York State Department of Corrections and Community Supervision, post.

9. In light of the foregoing, the Court does not reach Petitioner's other contentions.