| Graziano v Evans |
| 2011 NY Slip Op 09231 [90 AD3d 1367] |
| December 22, 2011 |
| Appellate Division, Third Department |
| Peter Graziano, on Behalf of Himself and All Others SimilarlySituated, Appellant, v Andrea W. Evans, as Chair of the New York State Division ofParole, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, New York City (Steven C. Wu of counsel), forrespondents.
Mercure, A.P.J. Appeal from an order of the Supreme Court (McDonough, J.), enteredSeptember 27, 2010 in Albany County, which, among other things, granted defendants' motion todismiss the complaint.
In 1986, plaintiff was convicted of murder in the second degree in connection with shootingan individual following an argument that took place while both men were consuming alcohol at abar (People v Graziano, 151 AD2d 775 [1989], lv denied 74 NY2d 809 [1989]).Plaintiff received the minimum sentence, 15 years to life in prison. He appeared before the Boardof Parole five times between 2001 and 2008, and was denied parole each time. He was ultimatelyunsuccessful in the court proceedings that he commenced to challenge the Board's determinationsdenying parole (see e.g. Matter ofGraziano v Travis, 21 AD3d 1174 [2005]; People ex rel. Graziano v Costello,306 AD2d 959 [2003], lv denied 100 NY2d 511 [2003]; Graziano v Lape, 358 FSupp 2d 64 [2005]). In 2006, plaintiff commenced a class action in the United States DistrictCourt for the Southern District of New York under 42 USC § 1983, alleging that the Boardhad violated the US Constitution by adopting an unofficial policy of [*2]denying parole release to all prisoners convicted of A-1 violentfelony offenses, without consideration of statutorily mandated factors (Graziano v Pataki,2007 WL 4302483, 2007 US Dist LEXIS 89737 [SD NY 2007]; Graziano v Pataki, 2006WL 2023082, 2006 US Dist LEXIS 52556 [SD NY 2006]). That action was dismissed upon afinding that plaintiff and the other class members had failed to state federal due process, equalprotection or ex post facto claims.[FN1]
In 2009, plaintiff commenced this action on behalf of a class that is identical to that certifiedin the federal action—prisoners who were convicted of A-1 felonies, are eligible for parolerelease, and were denied parole after their most recent hearing based upon the seriousness ornature of their offense (see Graziano v Pataki, 2007 WL 4302483, *2-4, 2007 US DistLEXIS 89737, *5-12). As in the federal action, plaintiff alleges that the Board has adopted anunofficial policy resulting in the systematic denial of parole to A-1 violent felony offenders basedsolely on the nature of the underlying crime and without consideration of the statutorilymandated criteria set forth in Executive Law § 259-i (2) (c) (A). Unlike the federal action,plaintiff's challenges herein are grounded in allegations that the Board has violated ExecutiveLaw § 259-i, rather than the constitutional claims rejected by the United States DistrictCourt. Plaintiff seeks, among other things, a declaration that the Board violated Executive Law§ 259-i, an injunction enjoining the Board from denying parole without due considerationof all factors set forth in section 259-i, and an order directing retraining and new supervisoryprocedures for the Board.
Defendants moved to dismiss the complaint, and plaintiff cross-moved for class certificationand to consolidate this action with his then-pending CPLR article 78 proceeding challenging his2008 denial of parole.[FN2]Supreme Court granted defendants' motion, dismissed the complaint, and denied plaintiff's crossmotion as academic. Plaintiff appeals, and we now affirm.
Plaintiff argues that Supreme Court erred in dismissing the complaint as barred by resjudicata because, he maintains, his prior proceedings challenging his adverse paroledeterminations did not permit a full and fair opportunity to litigate his claim that the Board issystematically violating Executive Law § 259-i. That is, plaintiff asserts that there is ameaningful distinction between a challenge to the outcome of a particular parole determinationand a challenge to the Board's on-going, allegedly flawed process of deciding whether to grantparole to any inmate. Plaintiff contends that CPLR article 78 review of a particular determinationon a limited record prevents the courts from considering evidence that the Board has a practice orpolicy leading to systemic violations of section 259-i—i.e., a practice of denying parolebased solely on the nature of the underlying crime and without considering the additionalrequired criteria.
Executive Law § 259-i provides that "[a]ny action by the [B]oard . . .shall be deemed a judicial function and shall not be reviewable if done in accordance with law"(Executive Law § 259-i [5]). It is well settled that it is the Board that "holds the power todecide whether to release a sentenced prisoner on parole," and "[j]udicial intervention iswarranted only when there is a 'showing of irrationality bordering on impropriety' " (Matter ofSilmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York StateBd. of Parole, 50 NY2d 69, 77 [1980]). [*3]As plaintiffasserts, the Board's consideration of the factors set forth in section 259-i (2) (c) (A) is mandatory;those factors include "the inmate's institutional record . . . , performance in anytemporary release program, release plans, any deportation order issued by the [f]ederal[g]overnment, and any statement to the Board by victims or their representative," as well as theseriousness of the offense and the inmate's prior criminal record (Matter of Silmon vTravis, 95 NY2d at 476-477; see Executive Law § 259-i [2] [c] [A]). TheBoard is not required to discuss every factor considered, however, and it need not accord everyfactor equal weight (see Matter of King v New York State Div. of Parole, 83 NY2d 788,791 [1994]; Matter of Santos vEvans, 81 AD3d 1059, 1060 [2011]). Moreover, while the Board may not "consider[ ]factors outside the scope of the applicable statute, including penal philosophy" (Matter ofKing v New York State Div. of Parole, 83 NY2d at 791), it can consider factors—suchas remorse and insight into the offense—that are not enumerated in the statute butnonetheless relevant to an assessment of whether an inmate "present[s] a danger to thecommunity" (Matter of Silmon v Travis, 95 NY2d at 477).
In short, erroneous determinations of the Board are reviewable in CPLR article 78proceedings and, as Supreme Court concluded, such review necessarily involves consideration ofwhether the Board properly based its determination on the factors set forth in Executive Law§ 259-i (2) (c) (A) (see e.g. Matter of Silmon v Travis, 95 NY2d at 476-478;Matter of King v New York State Div. of Parole, 83 NY2d at 790-791; Matter ofSantos v Evans, 81 AD3d at 1060). Plaintiff cannot state a cognizable claim or side-step thelimit on judicial review contained in section 259-i (5) by "lumping together" a number of claimspurportedly as evidence that the Board has adopted a policy of refusing to properly consider thestatutory factors (Hurrell-Harring v Stateof New York, 15 NY3d 8, 23 [2010] [internal quotation marks and citation omitted]).Furthermore, plaintiff's claims herein and his standing as named plaintiff are based upon hisassertions that the Board allegedly failed to adequately consider all of the statutory factors anddetermined to deny his most recent request for parole based solely on the seriousness of hisoffense. He has previously litigated this claim, however, in the context of his CPLR article 78proceeding challenging that determination. Inasmuch as that proceeding has evidently beenbrought to a final conclusion, we agree with Supreme Court that the doctrine of res judicata bars"all other claims arising out of the same transaction"—such as those raisedhere—"even if based upon different theories or if seeking a different remedy" (O'Brienv City of Syracuse, 54 NY2d 353, 357 [1981]; accord Parker v Blauvelt Volunteer FireCo., 93 NY2d 343, 347 [1999]). Accordingly, the court properly dismissed the complaint.
Plaintiff's remaining arguments have either been rendered academic by our decision or, uponconsideration, found to be lacking in merit.
Spain, Lahtinen, Malone Jr. and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Plaintiff has evidently appealedfrom the dismissal of the federal complaint.
Footnote 2: Supreme Court has sincedismissed the petition in the CPLR article 78 proceeding.