| Matter of Johnson v New York State Div. of Parole |
| 2009 NY Slip Op 06359 [65 AD3d 838] |
| August 28, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Daniel Johnson, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondent-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County(Christopher J. Burns, J.), entered December 17, 2008 in a proceeding pursuant to CPLR article78. The judgment dismissed the amended petition.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs, the amended petition is granted, the determination is annulled, and the matter isremitted to respondent for a de novo hearing before a different panel within 60 days of the dateof service of the order of this Court with notice of entry.
Memorandum: Petitioner appeals from a judgment dismissing his amended petition pursuantto CPLR article 78 seeking to annul the determination of respondent, New York State Divisionof Parole (Parole Board), in December 2007 denying him parole release for the third time. As wenoted on the appeal by petitioner from the judgment dismissing his petition seeking to annul thedetermination in December 2005 denying him parole release for the second time (Matter of Johnson v Dennison, 48AD3d 1082 [2008]), petitioner was convicted of murder in the second degree (Penal Law§§ 20.00, 125.25 [1]) in 1989 on a theory of accessorial liability and received theminimum sentence, i.e., 15 years to life imprisonment (see § 70.00 [2] [a]; [3] [a][i]). We agree with petitioner that Supreme Court should have granted his amended petition,which sought to annul the determination and to direct respondent to conduct a de novo hearingbefore a different panel.
It is of course well settled that parole release determinations are discretionary and entitled todeference (see Executive Law § 259-i [5]; see generally Matter of Silmon vTravis, 95 NY2d 470, 476 [2000]). The Parole Board is required, however, "to give fairconsideration to each of the applicable statutory factors as to every person who comes before it,and where the record convincingly demonstrates that the [Parole] Board did in fact fail toconsider the proper standards, the courts must intervene" (Matter of King v New York StateDiv. of Parole, 190 AD2d 423, 431 [1993], affd 83 NY2d 788 [1994]; see also Matter of Mitchell v New YorkState Div. of Parole, 58 AD3d 742 [2009]; see generally Executive Law §259-i [1] [a]; [2] [c] [A]). Although the Parole Board need not expressly refer to the relevantstatutory factors in its determination (see King, 190 AD2d at 431), we conclude that thedetermination of the Parole Board in this case fails to comply with the [*2]requirement of Executive Law § 259-i (2) (a) that the reasonsfor denial of parole be "given in detail and not in conclusory terms." Indeed, the only reason forthe Parole Board's denial of parole that is discernable from the perfunctory reference to "[t]heviolence associated with this terrible crime" is that the determination was based solely upon theseriousness of the crime. "The Legislature, however, has not defined 'seriousness of [the] crime'in terms of specific categories of either crimes or victims and it is apparent that in order topreclude the granting of parole exclusively on this ground there must have been somesignificantly aggravating or egregious circumstances surrounding the commission of theparticular crime" (King, 190 AD2d at 433). Here, the mere reference to the violence ofthe crime, without elaboration, does not constitute the requisite "aggravating circumstancesbeyond the inherent seriousness of the crime itself" (id.).
Further, the record is devoid of any indication that the Parole Board in fact considered thestatutory factors that weighed in favor of petitioner's release, such as petitioner's exemplaryinstitutional record and the favorable remarks of County Court at the time of sentencing. In fact,during the notably truncated hearing, the Parole Board focused on matters unrelated to anystatutory factor. We therefore conclude on the record before us that the Parole Board failed toweigh all of the relevant statutory factors (see Mitchell, 58 AD3d at 743), and that thereis "a strong indication that the denial of petitioner's application was a foregone conclusion"(King, 190 AD2d at 431-432). Present—Smith, J.P., Fahey, Pine and Gorski, JJ.