Petitioner, Amelio Marino Esq.
Respondents, Samuel Yaggy, Assistant Attorney General.
has been on parole since May 3, 2012, following his
conviction January 22, 1982, and subsequent incarceration for
kidnapping in the first degree. When he was convicted in
1982, kidnapping in the first degree was not classified as a
sex offense. Even now, kidnapping in the first degree is
classified as a sex offense only if the victim is under 17
years old, which petitioner's victim was not. NY Correct.
Law § 168-a(2)(a)(i); People v. Howard, 27
N.Y.3d 337, 339-40 (2016); People v. Knox, 12 N.Y.3d
60, 65 (2009). As part of the conditions of his parole,
however, respondent New York State Department of Corrections
and Community Supervision (DOCCS) Division of Parole and
parole officers in November 2013 assigned him to a unit for
sex offenders and in February 2015 required him to
participate in a sex offender treatment program. Petitioner
seeks reassignment out of the sex offenders' unit and
removal of the condition that he participate in sex offender
treatment, on the grounds that these conditions are
arbitrary, not rationally based on the facts or law, and an
abuse of discretion. C.P.L.R. § 7803(3).
RESPONDENTS' INITIATION OF SEX OFFENDER
parties agree that petitioner was convicted for arranging and
carrying out with two co-defendants the kidnapping of a
female victim and, only after he had left the premises in
which she was detained, one of his co-defendants raped her.
Nevertheless, respondents consider petitioner to have been a
"bystander of rape." V. Pet. Ex. E; V. Answer
¶ 14. His parole officer respondent Hamilton referred
petitioner to Shiloh Consulting, LLC, where he was admitted
February 25, 2015, "to receive psychotherapy to explore
the factors that had contributed to his conviction of
kidnapping and being the bystander of rape." V. Pet. Ex.
E. On June 15, 2015, Shiloh Consulting discharged him due to
an "inability to meet treatment goals."
Id. While this reason suggests that the
psychotherapists failed in their objective, Shiloh Consulting
commented on his discharge that he "continues to
demonstrate his resistence in therapy from expressing, 'A
group of sex offenders can not help me.'"
Id. Between February and June 2015, however, he
attended the treatment readiness group sessions in which he
was placed for eight weeks and bi-weekly individual therapy
petitioner's discharge from this sex offender treatment
program, respondent parole officers fitted petitioner with a
Global Positioning System (GPS) ankle monitor, due in part to
his disinterested participation in the program, as well as
previous failures to visit the parole office as required and
violations of his curfew. Now that petitioner has worn the
monitor over a year he also seeks that the monitor be removed
or, at minimum, regularly adjusted to prevent injury to his
ankle or alternative body part where the monitor is fitted.
RESPONDENTS' JUSTIFICATION FOR PETITIONER'S CONTINUED
TREATMENT AND MONITOR
may designate petitioner "a discretionary sex offender
because he kidnapped a woman who was later raped by his
co-defendants, " V. Answer ¶ 18, based "not...
on convictions alone, " but also on other past behavior
and current behavior as a parolee, V. Pet. Ex. G, as long as
the designation and associated conditions imposed on his
parole are rationally related to his conduct and chances of
recidivism. NY Exec. Law § 259-c(2); 9 N.Y.C.R.R. §
8003.3; Williams v. Department of Corr. & Community
Supervision, 136 A.D.3d 147, 159 (1st Dep't 2016);
Williams v. New York State Div. of Parole, 71 A.D.3d
524, 525 (1st Dep't 2010); M.G. v. Travis, 236
A.D.2d 163, 168-69 (1st Dep't 1997); George v. New
York State Dept. of Corr. & Community Supervision,
107 A.D.3d 1370, 1372-73 (2d Dep't 2013). "Simply
because a challenged act is discretionary does not mean it is
unreviewable under CPLR 7803(3)...." Anonymous v.
Commissioner of Health, 21 A.D.3d 841, 843 (1st
Sex Offender Treatment
only conduct to which respondents relate his required
participation in sex offender treatment is his kidnapping of
his victim, which "enabled his co-defendant to rape
her." V. Answer ¶ 21. Respondents do not dispute
that petitioner was neither present nor nearby when his
co-defendant raped her. Respondents do not claim that
petitioner knew his co-defendant would rape his victim or
knew facts that reasonably would have led petitioner to
believe she would be raped. Nonetheless, his kidnapping did
leave her entirely vulnerable to further victimization by his
partner in their initial crime.
respondents never explain why, if this conduct over 30 years
before petitioner's parole justified sex offender
treatment as a condition of his parole, the treatment
suddenly was warranted in February 2015, but not between his
release in May 2012 and February 2015, almost three years
later. Respondents do not cite to any conduct by petitioner
during this period indicating his failure to take
responsibility for his actions or his propensity to repeat
his past offense or to commit a sex offense in the future.
his parole, petitioner has maintained a mutually respectful,
supportive, and harmonious marriage and both volunteer and
compensated employment. Shortly after his discharge from
Shiloh Consulting, he voluntarily enrolled in Queens
Counseling for Change July 14, 2015. Respondents present its
Director Menzie's unsworn correspondence dated May 16,
2016, to petitioner's current parole officer who
succeeded respondents Hamilton and Medina, recounting that
petitioner attended four treatment sessions between July 23
and September 1, 2015, but then did not return until January
21, 2016. The program then conveyed to him the expectation
that he was to attend weekly sessions. Although he attended
only nine sessions between January 21 and May 16, 2016,
approximately bi-weekly, the correspondence indicates no
deficiency in his attendance or dissatisfaction with his
participation. The program Director comments positively
regarding petitioner's participation: "appropriate
and cooperative. He has expressed remorse regarding the
circumstances of his Instant Offense."
supplemental unsworn correspondence dated August 7, 2016, to
petitioner's parole ...