Your client is an inmate serving a 3-9 sentence for Grand Larceny Third starting on November 2, 2011. During his incarceration he is awarded Merit Time pursuant to Corrections Law § 805 on July 31, 2012 which qualifies him for release after serving 5/6 of his minimum. He was also awarded a Certificate of Earned Eligibility on two occasions July 31, 2012 and again on February 6, 2013. His parole eligibility date is June 5, 2013. Prior to his initial appearance before the Parole Board on February 26, 2013 the following were submitted; a personal statement, letters of support, a Parole Board Summary evidencing a clean disciplinary record, a proposed residence upon release, and a guideline release range of 18 – 30 months; a COMPAS Risk and needs Assessment Report evidencing a low risk to re-offend, abscond or for violence; and a letter from prospective employers offering full time employment.
On February 26, 2013, the three panel Board denied release and ordered a hold for an additional 24 months. The Board’s determination recited the boilerplate “there is a reasonable probability that you would not live and remain at liberty without violating the law and your release at this time is incompatible with the welfare and safety of the community”. The reasons offered by the Board to support this conclusion include the facts of the underlying offenses – Petitioner’s theft of large amounts of money from people who trusted him; the fact that Petitioner had some misdemeanor larceny convictions from the early 1980’s; and the fact that restitution and child support were owed by Petitioner. The decision of the Board failed to weigh, or even acknowledge, Petitioner’s exemplary prison disciplinary record, his positive programming, positive contributions to the prison community, and the support his family and friends would provide upon release.
Now what? First the inmate files an administrative appeal which was not acted upon within four months. Therefore, NY Comp. Codes R. & Regs. Title 9, §8006.4(c) (2006) deems the inmate has exhausted all administrative remedies and can bring a petition pursuant to Article 78 which is exactly what we did on his behalf. In his decision dated July 20, 2104, Acting Supreme Court Justice Robert B. Wiggins in Livingston County relying upon Matter of Wallman v. Travis, 18 AD3d 304 (1st Dept. 2005) concluded Correction Law Section 805 creates a presumption in favor of parole release for 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. Justice Wiggins further concluded, like Wallman, the Board’s conclusions that the petitioner would likely re-offend, primary focus on underlying crimes and its other proffered reasons “are either unsupported by the record, or simply make no sense.” The Court concluded the Board’s determination denying parole was “irrational bordering on impropriety”annulled the determination and although unable to grant release remitted for a de novo hearing specifically finding;
[T]he Board must consider the appropriate factors in light of the “reasonable probability” standard under Correction Law § 805 (see Cappiello v. New York State Bd. Of Parole, 6 Misc3d 1010[A], 2005 NY Slip OP 51762[U] [2005], [Board’s role is to evaluate inmate’s current danger, not to resentence him by substituting its own opinion of the severity of his crime for that of the court]). Further, the Board’s determination must be stated in nonconclusory terms, as the statute requires (Executive Law § 259-I[2] [a]).
Challenging the denial of release couldn’t be more straight forward.
