Preview:

Matter of Fuentes v New York State Bd. of Parole 2012 NY Slip Op 32721(U) August 6, 2012 Supreme Court, Albany County Docket Number: 8098-11 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

[* 1]

STATE OF NEW YORK
SUPREME COURT
In The Matter of GERMAN FUENTES,

COUNTY OF ALBANY
-

Petitioner, -against-

NEW YORK STATE BOARD OF PAROLE,
Respondent,
For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

Supreme Court Albany County Article 73 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-12-ST3346 Index No. 8098-1 1
Appearances :

German Fuentes

Inmate No. 92-B-0555
Petitioner, Pro Se Cayuga CorrectionaI Facility PO Box 1186

Rt. 38A
Moravia, NY f 3 I 18
Eric T. Schneideman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York I2224 (Kevin P. Hickey, Assistant Attorney Genera1 of Counsel)

George B. Ceresia, Jr., Justice
The petitioner, an inmate at Cayuga Correctional Facility, has commenced the instant
CPLR Article 78 proceeding to review a determination of respondent dated April 19,20 I 1

[* 2]

to deny petitioner discretionary release on parole. Petitioner is sewing an indeterminate term
o f imprisonment of twenty years tu life upon conviction of murder in the second degree.
Among the many arguments set forth in the petition, petitioner contends that the Parole

Board's determination violates his constitutional rights to due process and equal protection,
is arbitrary and capricious, and constitutes an impermissible resentencing. He maintains that

the Parole Board failed to consider factors supporting his release, including relocating to Puerto Rico to be with his wife, and work with his son in a restaurant. He indicates that he
completed all programming requirements during his incamration, and obtained his G.E.D.
degree in 1993. He criticizes the Parole Board for making only passing reference to his

program achievements. In his view, the Parole Board improperly considered only the
seriousness of the crime for which he was convicted. T s petitioner asserts that there is h

nothing in the record to support the Parole Board's finding that he has a disregard for human
Iife; and indicates he has no previous criminal record. The petitioner aim maintains that he

has a clean institutional record, with no disciplinary infractions.
The reasons for the respondent's determination to deny petitioner release on parole
are set forth as follows:

"After a review of the record and interview, the panel has determined that if released at this time, there is a reasonable probability that you wouId not live and remain at liberty without again violating the law and your release would be incompatible with the welfare of society and would so deprecate the serious nature of the crime as to undermine respect for the law. This decision is based on the following factors: your instant offense is murder Znd in which you shot and killed an unarmed victim as he tried to aid a store owner who was being attacked. Note is made of your sentencing minutes, programming, disciplinary record, limited record, opposition to your release and all other factors. Your violent actions in which you retrieved a shot gun,

2

[* 3]

struck the unarmed victim in the face with it then shot him in the
back. The merciless and violent nature of your offense indicates the danger you pose. Parole is denied."

Turning first to a procedural issue, the petitioner maintains that the return date of the
instant proceeding was improperly adjourned f o Mach 23,20 12 to May 4,ZO 12, and that rm
respondent's papers are untimely. From a review of the letter dated April 23,20 12 of Jmes

M. Stacy, Esq. of the Ofice of the Attorney General, it appears that the matter was adjourned
at the request of the respondent on March 16,2012. This was confirmed by amember of the

staff ofthe office of the Albany County Supreme Court Clerk, who indicated that the

adjournment was granted by the Judge assigned to h e March 23, 2012 Albany County
Special Term. As such, the Court finds that the adjourmnent was properly granted, and

respondent's answer and opposing papers were timely sewed. Moreover, had the respondent

failed to timely submit its answer, the Court would have directed the respondent to do SO
pursuant to the provisions of the last sentence of CPLR 7804 (e).

The Court notes that because there was no formal hearing in this instance, the standard
of review is not whether the determination is supported by substantial evidence, but rather

whether the determination is in violation of lawful procedure, affected by an error of law3
arbitrary and capricious or a abuse of discretion @ CPLR 7803 [3]; Matter of Pel1 v Bd. n

of Educ., 34 NY2d 222 [19741).
Parole Release decisions are discretionary and, if made pursuant to statutory
requirements, not reviewable (Matter of D La Cmz v Travis, 10 AID3d 789 [3d Dept., e

20041; Matter of CoIlado v New York State Division of Parole, 287 AD2d 921 [3d Dept.,
200 11). Furthermore, only a "showing of irrationality bordering on impropriety" on the part

3

[* 4]

of the Parole Board has been found to necessitatejudicial intervention (E Matter of Silmon
Y

Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v. New York State Bd. of

Parole, 50 NY2d 69,77 [1980]; see also Graziano v Evans, 90 AD3d 1367 [3d Dept., 20 I I]).

In the absence of the above, there is no basis upon which to disturb the discretionary
determination made by the Parole Board (see Matter of Perez v.,,NewYork State of Division

of Parole, 294 AD2d 726 [3rd Dept., 20021).
The Court finds that the Parole Board considered the relevant criteria in making its decision and its determination was supported by the record. A review of the transcript of the
parole interview reveals that, in addition to the instant offense, attention was paid to

petitioner`s minimal discipIinary record and his plans upon release (which included an

employment opportunity with his son in Puerto Rim, and eventudly opening a print shop).
The decision b) expressly mentions consideration of petitioner's sentencingminutes and
institutional programing.
The decision was sufficiently detailed to inform the petitioner of the reasons for the

denial of parole and it satisfied the requirements of Executive Law 5259-i (see Matter of
Siao-Pao, I 1 NY3d 773 [2008]; Matter of Whitehead v. Rusg, 201 AD2d 825 [3rd Dept., 19941; Matter of Green v. New York State Division of Parole, 199 AD2d 677 [3rd Dept.,
19931). It is proper and, in fact, required, that the ParoIe Board consider the seriousness of

the inmate`s crimes and their vialent nature (a Matter of Matus v New Ymk State Board

of Parole, 87AD3d 1193 [3d Dept., 201 11; Matter of Dudley v Travis, 227 AD2d 863, [3rd

Dept., 1996), as well as the inmate's criminal history (seeMatter of F a d v Travis, 239 AD2d 629 [3rd Dept., 19971; Matter of Cohen v Gonzalez, 254 AD2d 556 [3rd Dept., 19981). The
4

[* 5]

Parole Board is not required to enumerate or give equal weight to each factor that it
considered in determining the inmate's application, or to expressly discuss each one (see
Matter of Matos Y New York State Board of Parolessupra; Matter of Young v New York

,Division of Parole, 74 AD3d 1681 [3rdDept., 20101; Matter of Wise v New York State
Division of Parole, 54 AD3d 463 [3rdDept., 20081). Nor must the parole board recite the

precise statutory language set forth in the first sentence of Executive Law $259-i (2) ( c ) (A)

lsee Matter of SiIvero v Dennison, 28 AD3d

859 [3d Dept., 20061).

In other words,

"[wlhere appropriatethe Board may give considerabie weight to, or place particular emphasis

on, the circumstances of the crimes for which a petitioner is incarcerated, as well as a
petitioner's criminal history, together with the other statutory factors, in determining whether
the individual `will live and remain at liberty without violating the law,' whether his or her

`release is not incompatible with the welfare of society,' and whether release will `deprecate
the seriousnessof [the] crime as to undermine respect for [the] law"' (Matter of Durio v New

York State Division of Parole, 3 AD3d 8 14 [3rd Dept., 20041, quoting Executive Law $2594
[2] IC] other citations omitted). [A],

Petitioner's claims that the determination to deny parole is tantamount to a
resentencing, in violation of the double jeopardy clauses's prohibition against multiple
punishments are conclusory and without merit

(see Matter of Bockeno v New York State

Parole Board, 227 AD2d 75 1 [3` Dept., 19961; Matter of Crews v New York State Executive
DeDartment Board of Appeals Unit, 281 AD2d 672 [3rd Dept., 20011; Matter of Evans v

Dennison, 13 Misc3d 1236A, [Sup. Ct., West. Co., 20061; Matter of Kalwasinski v Paterson,
80 AD3d 1065,1066 [3d Dept., 201 IJ; Matter of Carter v Evans, 81 AD3d 103 1, 103 1 [3d
5

[* 6]

Dept., 201 I];

92 AD3d I054 [3d Dept., 20121). The fact that

an inmate has served his or her minimum sentence does not confer upon the inmate a protected liberty interest in parole release (see Matter of Motti v Alexander, 54 AP3d I. 114,
1 1 15 [3' Dept., 2008]>. The Parole Board is vested with the discretion to determine whether

release was appropriate notwithstanding the fact that the sentencing court set the miniinurn
term of petitioner's sentence (see Matter of Silrnon v Travis, 95 NY2d 470, 476 [2000];

Matter of Gomez v New York State Division of Parole, 87 AD3d 1197 [3d Dept., 201 11;
Matter of Cody v Dennison, 33 AD2d Z 141,1142 [3rdDept., 20061 lv denied 8 NY3d 802
120071; Matter of Burress v Dennison, 37 AD3d 930 [3d Dept., 20071).

With regard to petitioner's arguments concerning an alleged violation of his right to due process, the Court first observes that there is no inherent right to parole under the

constitution of either the United States or the State of New York (seeGreenholtz v Inmates

of the Nebraska Penal and CorrectionaI Complex, 442 US 1 , 7 [ 19791; Matter of Russo v
New York State Bd. of Parole, 50 NY2d 69, 73, supra). It has been repeatedly held that

Executive Law

8 2594 does not create in any prisoner an entitlement to, or a legithate

expectationof, release;therefore,no constitutionallyprotected liberty interests are implicated

by the ParoIe Board's exercise of its discretion to deny parole (see Bama v Travis, 239 F3d

169, 171 [2d Cir., 20011; Marvin v Goord, 255 F3d 40, 44 [2d Cir., 20011; Boothe v

Hammock, 605 F2d 66 1,664 [2d Cir., 19791; Paunetto v Hammock, 5 16 F Supp 1367,13671368 [SD NY, 19811; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69,7576,

supra, Matter of Gamez v Dennison, 18 AD3d 1099 [3rd Dept., 20051; Matter of Lozada v New York State Div. of Parole, 36 AD3d 1046, 1046 [3rd Dept., 20071). The Cowl,
6

[* 7]

accordingly, finds no due process vidation.
With respect to petitioner's equal protection argument, the Fourteenth Amendment oftheFederal Constitution forbids States from denying to any person within theirjurisdiction

the equal protection of the Iaws, but does not prevent the States from making reasonabk
classifications among persons (Western & S.L.I. Co. v Bd. of Equalization, 45 1 US 648,68

L Ed 2d 5 14, 523 101 S Ct 2070 [ 198I]). Where the action under review does not involve
a suspect class or fundamental right, it is not subject to strict judicial scrutiny, but rather is
examined using the rational basis standard to determine if the action violated the equal
protection clause (see,Massachusetts Bd. of Retirement v Murgia, 427 US 307,49 L Ed 2d

520,524,96 S Ct 2562 and Maresca v Cuomo, 64 NY2d 242,250). In this instance here is simply no evidence of either selective or disparate treatment or that the respondent's

determination was motivated by impermissible considerations (see Giordano v City of New

York, 274 F3d 740,75 1 [Znd Cir., 2001j). In addition, because "NewYork courts addressing
a state equal protection claim will ordinarily afford the same breadth of coverage conferred by federal courts under the US Constitution in the same or similar matters" (Brown v State of New York, 45 AD3d 15,20-21 [ZOO7 [3d Dept., 20071, quoting Brown v State of New

Yo&, 9 AD3d 23,27 [2004]), the Court discerns no violation of NY Const art I
Court finds the argument to have no merit.

5 1 1. The

With regard to petitioner's argument concerning the Parole Board's consideration of confidential records, the Court observes that the Parole Board has the authority and
obligation to cokct and maintain information concerning prison inmates, including that

which may be deemed confidentid

(see Executive Law 8 259-k and 9 NYCRR 8000.5).
7

[* 8]

Access to such records by inmates is governed by 9 NYCRR 8000.5 (c). In this instance,
there is no evidence that he made the necessary request for such records (seeMatter of Cnrz

v Travis, 273 AD2d 648,648 [3d Dept., 20001).

In his reply, the petitioner argues that the 201 1 amendments to the Executive t a w
should apply to the instant proceeding (seeL 20 11 ch 62, Part C, Subpart A, 0 38-b, et seq.). The amendment to Executive Law 259-c (4), adopted on March 3 1,20 1 1, was made effective

on October 3 1,20 12

L 20 1 1, ch 62, Part C, Subpart A, 0 49-/fl). The Court finds that

does not apply to the instant determination, dated April 19,2011 (seeMatter of Hamilton v New York State Division of Parole (943 NYS2d 73 1, Platkin, Richard M.,Sup. Ct., Albany
co., 20 22)'

In addition, the Parole Board's decision to hold petitioner for the maximum period (24
months) is within the Board's discretion and was supported by the record (seeMatter of Tatta

v State of New York Division of Parole, 290 AD2d 907 [3rd Dept., 20021, Iv denied 98
NY2d 604).

The Court has reviewed petitioner's remaining arguments and contentions and finds
them to be without merit.

The Court finds the decision of the Parole Board was not irrational, in violation of

'Executive 259-i (2) (c) was also amended in 201 1, to incorporate into one section the eight factors which the Parole Board was to consider in making release determinations LL 20 1 1 ch 62, Part C, Subpart A, 5 28-f-1). This amendment was effective se.e immediately upon its adoption on Mach 3 1,2011 (see L 201 1 ch 62, Part C, Subpart A, , 6 49). However, this amendment did not result in a substantive change in the criteria which the Parole Board should consider in rendering its decision (seeHamilton v New York State Division of Parole, supra).

a

[* 9]

lawh1 procedure, affected by an error of law, arbitrary and capricious, or constitute an abuse
of discretion, The petition must therefore be dismissed.
The Court observes that certain records of a confidential nature relating to the
petitioner were submitted to the Court as a part of the record. The Court, by separate order,
is seaIing all records submitted for in curneru review. Accordingly, it is

ORDERED and ADJUDGED, that the petition be and hereby is dismissed. This shall constitute the decision, order and judgment of the Court. The original decisiodorderljudgment is returned to the attorney for the respondents. All other papers are
being delivered by the Court to the County CIerk for filing.

The signing of this

decisiodorderljudgment and delivery of this decisionlorderljudgment does not constitute
entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable

provisions of that rule respecting filing, entry and notice of entry.

ENTER
Dated:

i

August & ,2012 Troy, New York
George B. Ceresia, Jr.

Papers Considered:

1. 2. 3.

Order To Show Cause dated January 9,2012, Petition, Supporting Papers and Exhibits Respondent's Answer dated April 26,2012, Supporting Papers and Exhibits Petitioner's Response to Opposition sworn to May 8, 20 I 2

9



Download 2012_32721.pdf

New York Law