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CORALLUZZO v. NEW YORK STATE PAROLE BD.

August 6, 1976

Ernest CORALLUZZO, Plaintiff,
v.
NEW YORK STATE PAROLE BOARD and Members of the New York State Parole Board, Individually and in their official capacity, Defendants



The opinion of the court was delivered by: CURTIN

CURTIN, Chief Judge.

 On February 1, 1975, plaintiff was committed to the custody of the New York State Department of Corrections for an indeterminate term of up to fifteen years under N. Y. Penal Law § 70.00, for a violation of the New York Penal Law. An inmate subject to such an indeterminate sentence must meet with the New York State Parole Board within nine to twelve months from the date his sentence commenced and, at that time, the Board ". . . shall make a determination as to the minimum period of imprisonment to be served prior to parole consideration." N. Y. Correction Law § 212(2).

 The plaintiff met with the Board on January 15, 1976 and shortly thereafter was informed by form notice dated January 15, 1976 that his minimum period of incarceration [hereinafter MPI] had been set at five years and that he would appear before the Parole Board in February 1980 for release consideration. No reasons were given to him for setting his MPI on the form. *fn1"

 The plaintiff argues that the Board's determination was deficient in that (1) no notice was given on which basis or evidence the Board would rely to deny parole; (2) plaintiff was not given an opportunity to view or examine the evidence relied upon by the Board or to cross-examine those who gave that evidence or to offer rebuttal evidence; (3) that plaintiff was secretly classified a member of organized crime and not allowed to confront that fact or evidence for its basis; *fn2" (4) that the Board's decision was not made on the basis of sufficient standards to provide for a fair and equitable and thoughtful decision or to allow the reviewing court a proper basis for review; and finally (5) that the Board acted arbitrarily, capriciously and unlawfully in denying plaintiff's parole or reconsideration for five years.

 The plaintiff seeks a declaratory judgment under 42 U.S.C. § 1983 to the effect that the Parole Board's consideration for release was conducted in violation of the plaintiff's rights under the fifth and fourteenth amendments, and an order directing the defendants to reconsider him for release in a proper manner.

 The defendants argue that since the MPI hearing is only to set a tentative date for parole consideration, the petitioner does not have sufficient interest at stake to trigger due process rights. Parolees facing parole revocation are entitled to due process safeguards. Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Prospective parolees also have due process rights. United States ex rel. Johnson v. Chairman, 500 F.2d 925 (2d Cir.), vacated and remanded with order to dismiss as moot, 419 U.S. 1015, 95 S. Ct. 488, 42 L. Ed. 2d 289 (1974). The defendants argue that since release cannot result directly from the MPI hearing, no due process safeguards should be required. However, the fact that immediate release cannot result is only one aspect in considering the case. In areas such as these, this rule is recognized:

 
The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be "condemned to suffer grievous loss," Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S. Ct. 624, 647, 95 L. Ed. 817 (1951) (Frankfurter, J., concurring), and depends upon whether the recipient's interest in avoiding that loss outweighs the governmental interest in summary adjudication. Goldberg v. Kelly, 397 U.S. 254 at 262, 90 S. Ct. 1011 at 1017, 25 L. Ed. 2d 287 (1970).
 
Quoted in United States ex rel. Johnson v. Chairman, supra, at 928-29.

 When faced with the argument that the MPI hearing was part of the judicial sentencing procedure for the purposes of representation by counsel, the Second Circuit commented:

 
The purpose of the Board interview [at the MPI hearing] is to ascertain an inmate's background, to determine the inmate's needs in terms of correctional treatment, to explain to him what is expected of him before considering his release on parole, and to set a tentative date for considering his release on parole. In effect, then, the Board proceeding in question here is very much like an interview to schedule, tentatively and subject to change, a hearing for parole release. As such, in our view, it is an integral part of the parole release process, and hence our decision denying the right to counsel in parole release hearings controls the instant case.
 
Walker v. Oswald, 449 F.2d 481, 484 (2d Cir. 1971).

 The Board can release an inmate sentenced to an indeterminate term with no minimum after one year's incarceration. Thus, by statute, the MPI hearing (held after nine to twelve months incarceration) may result in scheduling a parole release hearing and a grant of parole within a matter of days after the MPI hearing. One of the alternatives available to the Board at a regular parole release hearing, when to review an inmate for parole consideration, is the major purpose of the MPI hearing. This is a critical decision to the inmate; e.g., in 1972 75% of the inmates appearing before the New York Parole Board were released. United States ex rel. Johnson v. Chairman, supra, at 928. The burden upon the state in providing notice of reasons for setting the date for the next hearing is minimal. Other due process requirements such as reviewing files and cross-examining sources of information become more onerous.

 This court agrees with the plaintiff that the MPI hearing is similar enough to the parole release hearing to require that reason be given for setting of the date this inmate will again meet with the Board. However, the court declines to rule that other due process requirements are necessary for such hearings. See Haymes v. Regan, 525 F.2d 540 (2d Cir. 1975). *fn3"

 As we noted above, the Board did provide notice of reasons for setting of a five-year term of minimum imprisonment, but only after it had provided notice of the five-year "set off" without reasons, and only after this suit had been filed. Under these circumstances, the court will not consider whether such late notice of reasons was a proper basis for denying the plaintiff relief. An inmate should not be required to sue the Board in this court before reasons are provided. To even consider this late notice would encourage such a belief and practice by the defendants. A major rationale for the reasons' requirement is defeated by the failure to communicate those reasons to the inmate promptly. The court will not rule on the question of whether the reasons for the five-year "set off" contained in the second notice meet the requirement of United States ex rel. Johnson v. Chairman, supra.

 In addition, the court agrees with the plaintiff's argument that a requirement that reasons be given may alter the type of hearing the Board holds. See United States ex rel. Johnson v. Chairman, supra, at 931: "A reasons requirement 'promotes thought by the decider,' and ...


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