Calendar Date: May 30, 2013
Cooper, Erving & Savage, LLP, Albany (Jessica R. Vigars of counsel), for appellants.
Eric T. Schneiderman, Attorney General, Albany (Nancy A. Spiegel of counsel), for respondent.
Karen Murtagh, Prisoners' Legal Services of New York, Plattsburgh (Michael E. Cassidy of counsel), for Prisoner's Legal Services of New York, amicus curiae.
Before: Peters, P.J., Lahtinen, Stein and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (McGrath, J.), entered December 5, 2012 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole imposing certain conditions upon petitioner Harold George's parole release.
Petitioner Harold George (hereinafter petitioner) was convicted of murder in the second degree in 1991 and sentenced to a prison term of 15 years to life, running concurrently with sentences imposed upon a federal conviction for drug and weapons offenses. Petitioner Allison George (hereinafter the wife) married petitioner while he was incarcerated in 1999, and the two resided together after he was paroled in 2008. Following a 2010 domestic dispute in which petitioner allegedly attacked his wife, he was charged with violating the conditions of his parole in numerous respects. He pleaded guilty to several parole violations unrelated to the assaultive conduct, resulting in the revocation of his parole and the imposition of a 20-month time assessment.
The Board of Parole thereafter authorized petitioner's re-release and set forth parole conditions that, among other things, barred him from having any contact with his wife for at least one year and required him to successfully participate in a domestic violence offenders program. Petitioner refused to acknowledge that he had read and understood the conditions and, accordingly, has remained imprisoned (see 9 NYCRR 8003.1 [c]). After petitioners' unsuccessful efforts to have the Board alter the conditions, they commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition following joinder of issue, and petitioners appeal.
This appeal is not moot. While the Board is considering substituting less restrictive conditions for those challenged by petitioners, the Attorney General admitted at oral argument that the new conditions have neither been finalized nor served upon petitioner (see Executive Law § 259-i  [a]; 9 NYCRR 8003.2). Given both the uncertain final form of the modified conditions and lack of substantive action in imposing them, the rights of the parties remain "directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" (Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714 ; see Matter of Whiting v Ward, 97 A.D.3d 861, 862 ; cf. Encore Coll. Bookstores, Inc. v City Univ. of N.Y., 75 A.D.3d 442, 443 ).
Turning to the merits, the Board is vested with discretion to determine the conditions upon which an inmate is released, and its decision in that regard is not subject to judicial review if made in accordance with the law (see Executive Law §§ 259-c ; 259-i ; Matter of Boehm v Evans, 79 A.D.3d 1445, 1446 , lv denied 16 N.Y.3d 707 , cert denied US, 132 S.Ct. 1091 ). Petitioners argue that the conditions at issue are unlawful, arbitrary and capricious, in that they lack a sufficient factual basis in the record and improperly impair their fundamental right to maintain a marital relationship. We disagree.
Parole conditions that are "rationally related to the inmate's criminal history, past conduct and future chances of recidivism" are not arbitrary and capricious (Matter of Boehm v Evans, 79 A.D.3d at 1447; see Matter of Maldonado v New York State Div. of Parole, 87 A.D.3d 1231, 1233 ). Moreover, petitioner's fundamental rights to associate and marry may be restricted by parole conditions that are "reasonably related to legitimate penological interests" (Turner v Safley, 482 U.S. 78, 89 ; see Matter of Boehm v Evans, 79 A.D.3d at 1447; Matter of Williams v New York State Div. of Parole, 71 A.D.3d 524, 526 , appeal dismissed 15 N.Y.3d 770 , lv denied 15 N.Y.3d 710 ). 
Petitioner has an extensive criminal history involving both firearms and violence. Moreover, while on parole supervision he was fired from his job for threatening a coworker. The purported assault upon his wife occurred just one month later. Authorities were summoned to the marital residence after petitioners became embroiled in a prolonged and heated argument. Upon arrival, the wife purportedly stated that petitioner had struck her and physically restrained her when she attempted to flee. According to petitioner's parole officer, the wife revealed that petitioner had repeatedly beaten her and threatened to harm her and her family if she reported the abuse, and she fully believed that petitioner was capable of carrying out his threats. While the wife later denied that she had made those comments or that any assault had occurred, petitioners failed to conclusively demonstrate that the Board considered incorrect information in imposing the complained-of conditions upon petitioner, and the wife's recantation accordingly created a credibility issue for the Board to resolve (see Matter of Austin v Division of Parole, 278 A.D.2d 731, 732 ; People ex rel. Fahim v Lacy, 266 A.D.2d 612, 612 , lv denied94 N.Y.2d 759 ; see also Matter of Patterson v New ...