| Matter of Williams v New York State Div. of Parole |
| 2010 NY Slip Op 02060 [71 AD3d 524] |
| March 18, 2010 |
| Appellate Division, First Department |
| In the Matter of Everett Williams, Respondent, v NewYork State Division of Parole, Appellant. |
—[*1] Steven Banks, The Legal Aid Society, New York (Robert C. Newman of counsel), forrespondent.
Order and judgment (one paper), Supreme Court, New York County (Edward H. Lehner, J.),entered January 12, 2009, which, in a CPLR article 78 proceeding, modified a special conditionof petitioner's parole which forbade him from having any contact with his wife without thepermission of his parole officer, to permit petitioner to see his wife during noncurfew hours solong as the wife wished to see him, reversed, on the law, without costs, the special conditionreinstated, and the proceeding dismissed on the merits.
On April 3, 2007, petitioner was released on parole subject to 17 "Special Conditions" (SCs).These included, SC 13h, under which petitioner agreed to abide by a curfew established by hisparole officer (P.O.), and SC 13l, under which petitioner agreed that "I will not associate in anyway or communicate by any means with [my] wife, Mary Provost, without the permission of theP.O." While denying petitioner's application to vacate the curfew and to allow him to live withhis wife, the Supreme Court held that although SC 13l was not a per se violation of petitioner'sconstitutional rights, it was arbitrary to deny petitioner visitation during noncurfew hours as longas the wife consented thereto. In so ruling, the court noted the wife's desire to see petitioner, thatpetitioner's rape conviction occurred in 1982 and that none of petitioner's domestic violencerelated arrests resulted in convictions. We now find that the Supreme Court improperlysubstituted its discretion for that of respondent New York State Division of Parole (theDivision).
Because there is no federal or state constitutional right to be released to parole supervisionbefore serving a full sentence, the state has discretion to place restrictions on parole release(see Matter of M.G. v Travis, 236 AD2d 163, 167 [1997], lv denied 91 NY2d814 [1998]). Pursuant to Executive Law § 259-c (2) and 9 NYCRR 8003.3, specialconditions may be imposed by the Division before or after a parolee's release.
The imposition of a special condition is discretionary in nature and ordinarily beyondjudicial review as long as it is made in accordance with law and no positive statutoryrequirement is violated (see Executive Law § 259-i; 9 NYCRR 8003.2; seealso Matter of Briguglio v New York State Bd. of Parole, 24 NY2d 21, 28-29 [1969]; People ex rel. Stevenson v Warden ofRikers Is., 24 AD3d 122, 123 [2005], lv denied 6 NY3d 712 [2006]). If [*2]the condition is rationally related to the inmate's past conduct andfuture chances of recidivism, Supreme Court has no authority to substitute its own discretion forthat of the individuals in charge of designing the terms of a petitioner's parole release (seeMatter of M.G. v Travis, 236 AD2d at 169; Matter of Gerena v Rodriguez, 192AD2d 606 [1993]; Matter of Dickman v Trietley, 268 AD2d 914, 915 [2000]).
SC 13l, imposed in furtherance of the Division's "zero-tolerance" policy regarding domesticviolence, codified in the Division's Policy and Procedures Manual Item No. 9401.07 (Nov.2004), was made in the lawful exercise of official discretion, violated no statutory requirementand was neither arbitrary nor capricious in view of petitioner's criminal history, which included aconviction for rape, a classification as a level two sex offender, violations of protective ordersobtained by his former wife and by his present wife, Provost, and two arrests for assaulting andharassing Provost (see Matter ofCiccarelli v New York State Div. of Parole, 11 AD3d 843, 844 [2004]; Matter of Ahlers v New York State Div. ofParole, 1 AD3d 849, 850 [2003]; Matter of Wright v Travis, 297 AD2d 842[2002]). The foregoing demonstrates petitioner's extensive history of violence against women,and there is a direct connection between the orders of protection taken out by Provost andpetitioner's two arrests for assaulting and harassing her, and the Division's determination thatunsupervised contact with Provost is incompatible with rehabilitation and may lead to futureconflict with her (see Matter of Mollerv Dennison, 47 AD3d 818 [2008], lv denied 10 NY3d 708 [2008]). InMoller, a special condition prohibited the parolee from associating or communicatingwith his wife without the permission of the Chairman. The Chairman summarily denied theparolee's application to reside with his wife based on the existence of a policy strictly prohibitingthe approval of a proposed residence with any victim of domestic violence perpetrated by theparolee, even if the victim claimed that there had been reconciliation. On appeal, the parolee'spetition to lift the special condition or to allow him to live with his wife was denied on themerits.
As to petitioner's constitutional challenge, it was rejected by the Supreme Court andpetitioner has not cross-appealed from that determination. Were we to consider petitioner'scontention that SC 13l "seriously interferes" with the exercise of his "fundamental constitutionalright to marry," we would find, for the reasons set forth above, that SC 13l was "reasonablyrelated" to petitioner's criminal history and future chances of recidivism, and thus permissible(see Matter of Ariola v New York StateDiv. of Parole, 62 AD3d 1228, 1229 [2009], lv denied 13 NY3d 707 [2009]; People v Whindleton, 54 AD3d422, 423 [2008], lv denied 12 NY3d 822 [2009]). Even if a heightened level ofscrutiny is warranted because a fundamental right is being burdened (see Tremper v UlsterCounty Dept. of Probation, 160 F Supp 2d 352 [ND NY 2001]), here, unlikeTremper, there is a direct relationship between petitioner's criminal history and thechallenged condition of parole, which does not impose a complete impediment to plaintiffs'fundamental right to family life (see Bostic v Jackson, 2008 WL 1882696, *4-5, 2008US Dist. LEXIS 33888, *10-14 [ND NY 2008]; see also Wheeler v Pennsylvania Bd. ofProbation & Parole, 862 A2d 127, 131 [Pa Commw Ct 2004]). Concur—Tom, J.P.,Andrias and Saxe, JJ.
Manzanet-Daniels, J., dissents in a memorandum as follows: I respectfully dissent. Therecord provides no factual support for respondent Division of [*3]Parole's (DOP) assertion that Special Condition 13l, imposed inApril 2007 as a condition to petitioner's release to parole, is necessary to protect petitioner's wifefrom domestic violence. The record does not indicate the grounds for issuance of a temporaryorder of protection to petitioner's current wife in August 2005. As for petitioner's arrest forassault in July 1997 based on allegations made by his then-girlfriend, who is now his wife, thecharges were dropped and no parole violation was found. Petitioner was arrested for "bothering"his wife in September 2005, but the record does not indicate how he "bothered" her. He wasreleased, and again, there was no parole violation. Given that petitioner's wife supports thepresent application, I do not view how these unsubstantiated allegations warrant the draconianstricture of cutting petitioner off from all contact with his wife without the permission of hisparole officer. Since petitioner's wife has custody of the couple's young daughter, the restrictionalso effectively prevents petitioner from having contact with his daughter. Thus, the restrictionnot only interferes unreasonably with petitioner's marriage, but is an obstruction to thefather-child relationship.
The special condition has no rational relationship to the crimes for which petitioner iscurrently subject to parole. The crime for which petitioner was most recentlyincarcerated—second-degree criminal possession of a forged instrument—iseconomic in nature and does not indicate that petitioner will pose any danger to his wife or child.Petitioner's 1982 conviction of first-degree rape was for a crime that, while heinous and of theutmost gravity, was committed when petitioner was 19 years old, against a stranger, not a spouseor domestic partner, and there is no evidence of petitioner having committed any sex offenses inthe 27 years since that conviction. Hence, I find no rational relationship between that convictionand forbidding petitioner from having any contact with a wife who wants to see him. I note thespecial value of the marital relationship, to parolees like anyone else, as a source of emotionalsupport and well-being (see Turner v Safley, 482 US 78, 95-96 [1987]). In that context,there is no evidence that petitioner's wife has a criminal record or would otherwise be a badinfluence on him.
Accordingly, I would find that the special condition is not rationally related to the crimes forwhich petitioner is subject to parole, or to the State's objectives of reducing recidivism andprotecting the public (compare Peopleex rel. Stevenson v Warden of Rikers Is., 24 AD3d 122, 123 [2005], lv denied 6NY3d 712 [2006]), and would affirm the order.