| Matter of Huntley v Evans |
| 2010 NY Slip Op 07762 [77 AD3d 945] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Jason Huntley, Appellant, v Andrea Evans,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael Belohlavek and SudarsanaSrinivasan of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the New York StateBoard of Parole, dated January 21, 2009, denying, after a hearing, the petitioner's application tobe released to parole, the petitioner appeals from an order and judgment (one paper) of theSupreme Court, Orange County (Lubell, J.), dated January 15, 2010, which converted the matter,originally commenced as a declaratory judgment action, to a proceeding pursuant to CPLR article78, denied, as academic, the petitioner's motion to substitute Andrea Evans, Chairperson of theNew York State Division of Parole, as the respondent, denied the petition, and dismissed theproceeding.
Ordered that the order and judgment is modified, on the law, (1) by deleting the provisionthereof denying the petitioner's motion to substitute Andrea Evans, Chairperson of the New YorkState Division of Parole, as the respondent, and substituting therefor a provision granting themotion, and (2) by deleting the provision thereof denying the petition and dismissing theproceeding, and substituting therefor a provision granting the petition to the extent of annullingthe determination and remitting the matter to the New York State Division of Parole for a denovo parole hearing; as so modified, the order and judgment is affirmed, without costs ordisbursements.
The petitioner killed the brother-in-law of his ex-girlfriend by shooting him twice in thechest. The petitioner was convicted of murder in the second degree and sentenced to anindeterminate term of imprisonment of 17 years to life. At his second appearance before the NewYork State Board of Parole (hereinafter the Parole Board), the Parole Board denied hisapplication to be released to parole, citing only the seriousness of the offense. Specifically, theParole Board stated, "you appear before this panel with the serious instant offense of murder 2wherein you shot a male victim twice in the chest with a hunting rifle causing his death. Thispanel is disturbed by the extreme violence associated with this terrible crime." The petitionerchallenged the Parole Board's determination, and the Supreme Court, after converting thedeclaratory judgment action to a proceeding pursuant to CPLR article 78, denied, as academic,the petitioner's motion to substitute Andrea Evans, Chairperson of the Parole Board, as therespondent, denied the petition, and dismissed the proceeding.
Contrary to the petitioner's contention, the Supreme Court properly converted this matter,originally commenced as a declaratory judgment action, into a proceeding pursuant to CPLRarticle 78 (see New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 204[1994]; Town of Fishkill v Royal [*2]Dutchess Props.,231 AD2d 511 [1996]).
Pursuant to Executive Law § 259-i, the Parole Board is required to consider a numberof statutory factors in determining whether an inmate should be released to parole (see Matter of Miller v New York State Div.of Parole, 72 AD3d 690, 691 [2010]; Matter of Mitchell v New York State Div. of Parole, 58 AD3d 742[2009]). The Parole Board is not required to give equal weight to each factor, nor is it required toarticulate specifically each factor in its determination (see Matter of Miller v New York StateDiv. of Parole, 72 AD3d at 691; Matter of Hanson v New York State Bd. of Parole, 57 AD3d 994,994-995 [2008]; Matter of Wan Zhang vTravis, 10 AD3d 828, 829 [2004]). However, where the Parole Board denies release toparole solely on the basis of the seriousness of the offense, in the absence of any aggravatingcircumstance, it acts irrationally (see Matter of Mitchell v New York State Div. of Parole,58 AD3d at 743; Matter of Friedgood vNew York State Bd. of Parole, 22 AD3d 950, 951 [2005]; Matter of King v NewYork State Div. of Parole, 190 AD2d 423, 433 [1993], affd 83 NY2d 788 [1994]; cf. Matter of Guzman v Dennison, 32AD3d 798, 799 [2006]). Here, the Parole Board cited only the seriousness of the petitioner'scrime, and failed to mention in its determination any of the other statutory factors, including hisrecord of achievements, training of animals while incarcerated for use by law enforcement, thephysically challenged, and veterans of war, good disciplinary record, and the positiverecommendation made by the sentencing court. Accordingly, the Parole Board's determinationdemonstrates that it failed to weigh the statutory factors, and a new parole hearing is warranted(see Matter of Johnson v New YorkState Div. of Parole, 65 AD3d 838, 839 [2009]; Matter of Mitchell v New YorkState Div. of Parole, 58 AD3d at 743; Matter of Friedgood v New York State Bd. ofParole, 22 AD3d at 951; Matter ofWallman v Travis, 18 AD3d 304, 309 [2005]).
In light of our determination, the petitioner's motion to substitute Andrea Evans, Chairpersonof the Parole Board, as the respondent, must be granted (see CPLR 1019). Dillon, J.P.,Florio, Leventhal and Chambers, JJ., concur.