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Jenkins v. Hamilton

Supreme Court, New York County

August 29, 2016

Arnold Bruce Jenkins, Petitioner
A. Hamilton, M. MEDINA, and N.Y.S. DIVISION OF PAROLE, Respondents

          For Petitioner, Amelio Marino Esq.

          For Respondents, Samuel Yaggy, Assistant Attorney General.

          LUCY BILLINGS, J.S.C.

         Petitioner 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).


         The 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 sessions.

         Upon 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.


         DOCCS 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 Dep't 2005).

         A. Sex Offender Treatment

         Petitioner's 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.

         Yet 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.

         During 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."

         In supplemental unsworn correspondence dated August 7, 2016, to petitioner's parole ...

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