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In re Abrams

Supreme Court of New York, Second Department

May 10, 2017

In the Matter of Samuel Abrams, appellant,
v.
Tina M. Stanford, respondent. Index No. 5325/14

          Orlee Goldfeld, New York, NY, for appellant.

          Eric T. Schneiderman, Attorney General, New York, NY (Michael S. Belohlavek and David Lawrence III of counsel), for respondent.

          RANDALL T. ENG, P.J. L. PRISCILLA HALL SHERI S. ROMAN SYLVIA O. HINDS-RADIX, JJ.

          DECISION & ORDER

         In a proceeding pursuant to CPLR article 78, in effect, to review a determination of the New York State Board of Parole dated March 10, 2014, which, in effect, rescinded the petitioner's conditional parole for deportation only, which had been granted in its determination dated February 18, 2014, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Pagones, J.), dated April 6, 2015, which, in effect, denied the petition and dismissed the proceeding.

         ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the determination dated March 10, 2014, is annulled, and the petitioner's grant of conditional parole for deportation only is reinstated.

         After serving 20 years of an indeterminate term of imprisonment of 20 years to life, the petitioner was denied parole in January 2012. He secured a rehearing by order of the Supreme Court, Albany County.

         At the rehearing on February 18, 2014, more than two years after the original hearing, the petitioner was granted conditional parole for deportation only by a divided two-to-one vote of the New York State Board of Parole (hereinafter the Parole Board). As he had been issued a final removal order in 2002, it appeared that the petitioner would be deported to Guyana. In a determination dated February 24, 2014, the Parole Board granted conditional parole for deportation only "effective today 2/18/14, " which was the date of the rehearing. However, in a determination dated March 10, 2014, the Parole Board, in effect, rescinded the grant of conditional parole for deportation only by making the grant "effective 1/24/12, " the date of the original parole hearing, to expire "not later than 01/2014, " even before the February 24, 2014, determination had been rendered.

         The petitioner commenced the instant proceeding pursuant to CPLR article 78 to challenge the determination dated March 10, 2014. The Supreme Court, in effect, denied the petition and dismissed the proceeding.

         On appeal, the petitioner seeks to restore his grant of conditional parole for deportation only, or, in the alternative, a de novo hearing.

         The Parole Board contends that the instant appeal has been rendered academic because, subsequent to the determination under review, the petitioner was afforded another de novo parole hearing and denied parole. Contrary to this contention, while a subsequent denial of parole release renders an appeal from a previous denial of parole academic (see Matter of Moissett v Travis, 97 N.Y.2d 673, 674; Matter of Postall v Alexander, 74 A.D.3d 1078), here, the issue on appeal is not rendered academic by the subsequent proceedings (see Lindsay v New York State Bd. of Parole, 48 N.Y.2d 883; Matter of McAllister v New York State Div. of Parole, 78 A.D.3d 1413). The petitioner does not challenge the general denial of parole in the determination under review, but rather, challenges only the rescission of the previous grant of conditional parole for deportation only. Any subsequent denial of general release to parole does not render academic the petitioner's contention on the instant appeal that the Parole Board improperly rescinded the previous grant of conditional parole for deportation only without a hearing or due process of law.

         The Supreme Court, in the judgment appealed from, held that the petitioner was not eligible for conditional parole for deportation only status, because he was convicted of a class A-1 felony, citing Matter of Howithi v Travis (19 A.D.3d 727). This argument was not raised by the respondent, who concedes that the petitioner, who has served his minimum sentence, is eligible for consideration for conditional parole for deportation only.

         The position of the Parole Board on this issue is consistent with the language of Executive Law § 259-i(2)(d)(i), which contains two clauses to describe eligibility for conditional parole for deportation only, i.e., (1) "after the inmate has served his [or her] minimum period of imprisonment imposed by the court" and (2) "or at any time after the inmate's period of imprisonment has commenced for an inmate serving a determinate or indeterminate term of imprisonment, provided that the inmate has had a final order of deportation issued against him [or her] and provided further that the inmate is not convicted of... an A-I felony offense other than an A-I felony offense as defined in article two hundred twenty of the penal law." The petitioner fell within the first clause. Inmates who fall within the second clause are eligible for what is referred to as early conditional parole for deportation only (see Department of Corrections and Community Supervision, New York State Parole Handbook, section 2, subdivision 10), which was not sought by the petitioner.

         "When a statute is ambiguous and requires interpretation, the construction given to the statute by an administrative agency responsible for its administration should be upheld by the courts unless the agency's interpretation is irrational, unreasonable, or inconsistent with the governing statute" (Matter of Better World Real Estate Group v New York City Dept. of Fin., 122 A.D.3d 27, 35, citing Matter of Toys R Us v Silva, 89 N.Y.2d 411, 418-419). Once an inmate convicted of a class A-1 felony serves his or her minimum sentence, he or she can be considered for parole, subject to conditions imposed by the Parole Board. There is no basis for concluding that persons convicted of class A-1 felonies eligible for parole consideration cannot have parole conditioned upon deportation, while persons convicted of lesser crimes could have parole conditioned upon deportation.

         The Parole Board argues that the petitioner was eligible for consideration for parole, but parole was properly denied after consideration of the proper factors pursuant to Executive Law § 259-c(4). As noted, the petitioner does not challenge the general denial of parole release. The petitioner contends that rescinding ...


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