In the Matter of the Application of Nathanial Brown, Petitioner,
Andrea Evans, Chairwoman, NEW YORK STATE DEPARTMENT OF CORRECTIONS & COMMUNITY SUPERVISION, Respondent. For a Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules
For Petitioner Kerry Elgarten Esq., Legal Aid Society
For Respondent Michael Arcati, Assistant Attorney General
Lucy Billings, J.
Petitioner, an inmate in the custody of the New York State Department of Corrections and Community Supervision (DOCCS) currently incarcerated at Orleans Correctional Facility, challenges respondent DOCCS Chairwoman's time assessment of 24 months in additional incarceration after petitioner pleaded guilty to a violation of his parole conditions. C.P.L.R. § 7803(3) and (4). Respondent moves to dismiss the petition on the grounds that it fails to state a claim that respondent's determination violated constitutional due process guarantees or New York Executive Law § 259-i(3)(f)(x) or was arbitrary, without a rational basis, or unsupported by substantial evidence. C.P.L.R. §§ 3211(a), 7804(d). For the reasons explained below, the court denies respondent's motion to dismiss the petition, grants the petition to the extent of remanding the proceeding for speedy consideration by the New York State Board of Parole of petitioner's re-release on parole, and otherwise denies the petition. C.P.L.R. §§ 7803(3), 7806. See NY Exec. Law § 259-i(3)(f)(x).
I. UNDISPUTED BACKGROUND
In 1996, petitioner was convicted of Rape in the First Degree and sentenced to an indeterminate term of 11 to 22 years. NY Penal Law § 130.35. On August 11, 2010, he was released to parole supervision. On October 14, 2010, DOCCS declared him delinquent and charged him with multiple violations of his parole conditions.
At petitioner's Final Parole Revocation Hearing January 25, 2011, before an Administrative Law Judge (ALJ), petitioner pleaded guilty to one of the charges, entering the New York City Transit System without paying the fare, and admitted to being intoxicated when he committed that misconduct. He entered that plea on the understanding that the ALJ would recommend to the Board of Parole that a time assessment of 12 months be imposed, with the opportunity to attend an alternative substance abuse program for 97 days.
In a Parole Revocation Decision Notice dated January 25, 2011, the ALJ found, based on petitioner's plea, that petitioner entered the Transit System without paying the fare and was intoxicated when he did so. The ALJ further fulfilled the plea agreement by recommending to the Board of Parole that 12 months in additional incarceration be imposed, with the opportunity to attend an alternative substance abuse program for 97 days, and that, upon successfully completing the program, petitioner would be eligible for re-release to parole supervision sooner than in 12 months. NY Exec. Law § 259-i(3)(f)(x). The ALJ based the finding of a parole violation on the admitted verified facts and the time assessment of 12 months with the alternative program on a review of petitioner's behavior and mitigating circumstances. See Morrissey v. Brewer, 408 U.S. 471, 484 (1972); Mayfield v. Evans, __ A.D.3d __, 938 N.Y.S.2d 290, 298 (1st Dep't 2012). Nevertheless, in a Parole Revocation Decision Notice addendum dated January 31, 2011, respondent ordered that a time assessment of 24 months be imposed before petitioner would be eligible for re-release to parole supervision.
II. EXECUTIVE LAW § 259-i(3)(f)(x)
New York Executive Law § 259-i(3)(f)(ii) provides that a "revocation hearing shall be conducted by a presiding officer who may be a member [of] or a hearing officer designated" by the Board of Parole. Executive Law § 259-i(3)(f)(x) provides that, if that "presiding officer is satisfied that there is a preponderance of evidence that the alleged violator violated one or more conditions of release in an important respect, he or she shall so find." Regarding a parolee whom the presiding officer has found violated the conditions of release, § 259-i(3)(f)(x) authorizes the presiding officer to order one of three alternatives: (A) restoration to parole supervision; (B) placement in a parole transition facility up to 180 days, followed by restoration to parole supervision, or (C) reincarceration. When ordering reincarceration, the presiding officer is to " fix a date for consideration by the board for re-release on... parole." NY Exec. Law § 259-i(3)(f)(x) (emphasis added).
This "consideration by the board for re-release, " id., of course "refers to the future parole proceeding at the end of the term of time assessed, " "after the time assessment has elapsed, " not to the time assessment itself. Mayfield v. Evans, __ A.D.3d __, 938 N.Y.S.2d at 297. The time assessment determines the date by which the Board of Parole next will consider a parole violator for re-release on parole. 9 N.Y.C.R.R. § 8002.6(a); Suce v. Taylor, 572 F.Supp.2d 325, 330 n.3 (S.D.NY 2008). The Board's consideration of a former parole violator for re-release also follows a required personal interview. 9 N.Y.C.R.R. § 8002.6(d)(2)(iii).
Although Executive Law § 259-i(3)(f)(x) gives the presiding officer three options from which he "may" choose, the statute does not allow the officer to choose any other option. The enumerated list must be construed as intentionally excluding any options not listed. NY Statutes § 240; Town of Riverhead v. New York State Bd. of Real Prop. Servs., 5 N.Y.3d 36, 42-43 (2005); Walker v. Town of Hempstead, 84 N.Y.2d 360, 367 (1994); Locario v. State, 90 A.D.3d 547, 548 (1st Dep't 2001); New York City Council v. City of New York, 4 A.D.3d 85, 96 (1st Dep't 2004). The presiding officer "may" not choose an unlisted option such as a non-final decision imposing a time assessment, subject to a Board of Parole member's review and final decision fixing the time assessment. Mayfield v. Evans, __ A.D.3d __, 938 N.Y.S.2d at 297.
Thus, unless the Board of Parole designates one of its members as the presiding officer who conducts the hearing, NY Exec. Law § 259-i(3)(f)(ii), Executive Law § 259-i(3)(f)(x) does not authorize a Board member to find a violation of release conditions, to order reincarceration, or to fix the date when the reincarcerated parole violator may be considered again by the board for re-release. At that point, of course, the Board members will determine when, if ever, the parole violator will be re-released before expiration of his sentence. Mayfield v. Evans, __ A.D.3d __, 938 N.Y.S.2d at 297.
Executive Law § 259-i(3)(f)(x) does authorize the Board of Parole's intervention in one other instance. "For the violator serving an indeterminate sentence who has been found by the department to have committed a serious disciplinary infraction while incarcerated, the department shall refer the violator to the board for consideration for re-release to community supervision." Respondent does not dispute that petitioner did not fall in this category. While he was a violator serving an indeterminate sentence, DOCCS and the ALJ found that he had "violated one or more conditions of release, " not that he had "committed a serious disciplinary infraction while incarcerated." NY Exec. Law § 259-i(3)(f)(x). In the latter instance: "The Board shall retain the authority to suspend the date fixed for re-release" by the presiding ...