| Matter of Vaello v Parole Bd. Div. of State of N.Y. |
| 2008 NY Slip Op 01680 [48 AD3d 1018] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jose Vaello, Respondent, v Parole Board Divisionof State of New York, Appellant. |
—[*1] Jose Vaello, Beacon, respondent pro se.
Spain, J. Appeal from a judgment of the Supreme Court (Donohue, J.), entered July 31, 2007in Albany County, which granted petitioner's application, in a proceeding pursuant to CPLRarticle 78, to annul a determination of the Board of Parole denying petitioner's request for parolerelease.
In 1987, petitioner was convicted of murder in the second degree, criminal possession of aweapon in the second degree, attempted criminal possession of a controlled substance in the thirddegree and attempted criminal possession of a forged instrument in the second degree. He wassentenced to concurrent prison terms, the longest of which was 20 years to life on the murdercharge. In February 2006, the Board of Parole denied petitioner's request for parole release anddirected that he be held for an additional 24 months. After the determination was affirmed onadministrative appeal, petitioner commenced this proceeding. Supreme Court ruled in petitioner'sfavor, vacated the Board's decision and directed a de novo parole hearing on the ground that theBoard failed to adequately set forth a statutory basis for its determination. On the Board's appeal,we affirm.
Although parole release determinations are discretionary and entitled to deference, they mustsatisfy statutory requirements (see Executive Law § 259-i; Matter of Mendez v New York State Bd. ofParole, 20 AD3d 742 [2005]; Matter of De La Cruz v Travis, 10 AD3d 789 [2004]). Forexample, a decision of the Board based on factors not found in Executive Law § 259-i is[*2]improper and requires a new hearing (see Matter of Kingv New York State Div. of Parole, 83 NY2d 788, 791 [1994]; Matter of James v Chairman of N.Y. StateDiv. of Parole, 19 AD3d 857 [2005]). The first sentence of Executive Law § 259-i(2) (c) (A) mandates that "[d]iscretionary release on parole shall not be granted merely as areward for good conduct . . . but after considering if there is a reasonableprobability that, if such inmate is released, he [or she] will live and remain at liberty withoutviolating the law, and that his [or her] release is not incompatible with the welfare of society andwill not so deprecate the seriousness of his [or her] crime as to undermine respect for [the] law."The statute goes on to list criteria for the Board to consider in making this determination.
In its determination, the Board did not identify any of the standards set forth in the statute; itmerely listed the crimes for which petitioner was convicted, noted one prior conviction, and thensummarily stated that it was denying release because "[a]ll factors considered . . .you are a poor candidate for release to the community." Although the Board is not required togive all statutory factors equal weight or to articulate each factor considered in making itsdecision (see Matter of De La Cruz v Travis, 10 AD3d at 789), it must present somestatutory rationale for its decision (seeMatter of Prout v Dennison, 26 AD3d 540, 541 [2006]; cf. Matter of Mendez v NewYork State Bd. of Parole, 20 AD3d at 743). The use of "nonstatutory, conclusory language,"such as that employed by the Board here, impermissibly leaves the reviewing court to guess atthe basis for the Board's denial (Matter of Prout v Dennison, 26 AD3d at 541). Inasmuchas "judicial review of [an] administrative determination is limited solely to the legitimacy of thegrounds invoked by [the administrative body] as the basis for its decision," we run the risk ofimpermissibly relying on a ground not intended by the Board if we are left in the position toglean its intent from vague, inconclusive language (Matter of Millpond Mgt., Inc. v Town of Ulster Zoning Bd. of Appeals,42 AD3d 804, 805 [2007]; see Matter of Trump-Equitable Fifth Ave. Co. vGliedman, 57 NY2d 588, 593 [1982]; Matter of First Natl. Bank of Downsville v City ofAlbany Bd. of Zoning Appeals, 216 AD2d 680, 681 [1995]). Here, the dearth of any analysisof the statutory or regulatory criteria "makes it impossible for this Court to give meaning to thelanguage used by the Board" (Matter of Prout v Dennison, 26 AD3d at 541).Accordingly, we hold that Supreme Court correctly determined that a new hearing and decisionconsistent with the statutory criteria are required (see Matter of King v New York State Div.of Parole, 83 NY2d at 791; cf.Matter of Silvero v Dennison, 28 AD3d 859, 859-860 [2006]).
Mercure, J.P., Carpinello, Rose and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, without costs.