In Matter of Johnson v New York State Div. of Parole (2009 NY Slip Op 06359 [4th Dept 8/27/09]) an appeal from the dismissal of an Article 78 petition challenging the denial of parole, the Fourth Department reversed and ordered a new parole hearing upon a finding that the Parole Board failed to weigh all of the relevant statutory factors and that there is “a strong indication that the denial of petitioner’s application was a foregone conclusion.” The Court explained that
Although parole release determinations are discretionary, the Parole Board is required “to give fair consideration to each of the applicable statutory factors as to every person who comes before it, and where the record convincingly demonstrates that the [Parole] Board did in fact fail to consider the proper standards, the courts must intervene” (citations omitted).” In this case,
the only reason for the Parole Board’s denial of parole that is discernable from the perfunctory reference to “[t]he violence associated with this terrible crime” is that the determination was based solely upon the seriousness of the crime. “The Legislature, however, has not defined seriousness of [the] crime’ in terms of specific categories of either crimes or victims and it is apparent that in order to preclude the granting of parole exclusively on this ground there must have been some significantly aggravating or egregious circumstances surrounding the commission of the particular crime” (citation omitted). Here, the mere reference to the violence of the crime, without elaboration, does not constitute the requisite “aggravating circumstances beyond the inherent seriousness of the crime itself” (id.). Further, the record is devoid of any indication that the Parole Board in fact considered the statutory factors that weighed in favor of petitioner’s release, such as petitioner’s exemplary institutional record and the favorable remarks of County Court at the time of sentencing. In fact, during the notably truncated hearing, the Parole Board focused on matters unrelated to any statutory factor.
