The opinion of the court was delivered by: Acosta, J.
Matter of Matter of Mayfield v Evans
Decided on February 14, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law Â§ 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
SUPREME COURT, APPELLATE DIVISION First Judicial Department
Angela M. Mazzarelli, J.P. David B. Saxe Rolando T. Acosta Leland G. DeGrasse Sallie Manzanet-Daniels, JJ.
Petitioner appeals from an order and judgment (one paper) of the Supreme Court, New York County (Cynthia S. Kern, J.), entered March 15, 2011, which denied the petition and dismissed the CPLR article 78 proceeding challenging a final determination of the New York State Division of Parole, dated July 21, 2010, affirming the Parole Board's determination that petitioner violated his parole and imposing a time assessment, and from an order, same court and Justice, entered June 28, 2011, which upon reargument, essentially adhered to the original determination. Steven Banks, The Legal Aid Society, New York (Martin J. LaFalce of counsel), for appellant. Eric T. Schneiderman, Attorney General, New York (Simon Heller and Benjamin N. Gutman of counsel), for respondent. ACOSTA, J.
This appeal gives us the opportunity to address the statutory and constitutional validity of the New York State Division of Parole's bifurcated parole revocation process pursuant to 9 NYCRR Â§ 8005.20(c)(6), the regulation establishing such a process for parolees who have been convicted of homicide, sex crimes or kidnapping. We hold that this regulation is a usurpation of legislative prerogative and therefore void. We thus remit this matter to the New York State Board of Parole (Parole Board) so that petitioner may receive a new hearing that is consistent with the strictures of Executive Law Â§ 259-i(3)(f) as well as due process guarantees. Background
In 1998 petitioner was convicted of manslaughter in the first degree and sentenced to an indeterminate term of 6 to 18 years. That sentence ran concurrently with his 1992 conviction for robbery in the first degree and his 1992 conviction for attempted murder in the second degree.
On October 16, 2008, petitioner was conditionally released to parole supervision. On January 29, 2009, the Division of Parole issued a parole violation warrant and charged petitioner with violating the conditions of his parole. Petitioner was taken into custody immediately and without incident. On April 17, 2009, the Division supplemented petitioner's parole violation report to add an additional charge.
From April 17, 2009 until May 6, 2009, petitioner's counsel negotiated with the Division Deputy Chief Edmund Del Rio and Administrative Law Judge (ALJ) Amy Porter as to an appropriate disposition. After an "intense investigation," the Division concluded that the initial charges were "unfounded." As to the additional charge made on April 17, 2009, Deputy Chief Del Rio offered to recommend an 18 month time assessment in exchange for petitioner's guilty plea.
On May 5, 2009, petitioner's revocation hearing was held. ALJ Porter, who presided over the hearing, agreed to honor the plea arrangement, and recommended to the Parole Board that petitioner next be considered for re-release in 18 months. The initial charges were dismissed, and petitioner pleaded guilty to the additional charge made on April 17, 2009. Additionally, petitioner was given the opportunity to present mitigating evidence regarding his violation of the additional charge.
ALJ Porter's written decision stated that a parole violation had occurred and recommended that petitioner be given an 18 month time assessment. The ALJ further prepared an "Analysis Sheet," which stated that charges 1-6 were "unfounded" and withdrawn. The ALJ did not note petitioner's mitigating evidence in either her written decision or the Analysis Sheet.
Subsequently, pursuant to 9 NYCRR 8005.20(c)(6), a Parole Board Commissioner issued a decision fixing petitioner's date for consideration of re-release by the Parole Board at 36 months. The Commissioner's one sentence decision noted that petitioner had prior convictions for robbery as well as attempted murder, and ...