State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 24, 2014 518301 

________________________________

In the Matter of SAMUEL

HAMILTON,

Appellant,

v MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF

PAROLE et al.,

Respondents.

________________________________

Calendar Date: June 3, 2014

Before: Peters, P.J., Garry, Rose, Egan Jr. and Clark, JJ.

__________

Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York

City (Christopher L. Filburn of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.

Arnold of counsel), for respondents.

__________

Clark, J.

Appeal from a judgment of the Supreme Court (Devine, J.),

entered November 14, 2013 in Albany County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of the Board of Parole

denying petitioner's request for parole release.

Petitioner has served approximately 30 years on an

aggregate sentence of 18 years to life in prison for his

conviction of murder in the second degree and robbery in the

first degree. The convictions stemmed from a February 1982

incident in which an off-duty police officer was killed by

petitioner's accomplice during an attempted robbery. Petitioner
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made his latest of numerous appearances before the Board of

Parole in August 2012, and his request for release was denied. 

He was ordered to be held an additional 24 months. After the

Division of Parole failed to timely respond to his administrative

appeal, petitioner commenced this CPLR article 78 proceeding. 

Supreme Court dismissed the petition, and petitioner now appeals.

We affirm. The procedures governing parole are set forth

in Executive Law article 12-B. Executive Law § 259-i (5)

dictates the scope of our review, providing that "[a]ny action by

the [B]oard or by a hearing officer pursuant to this article

shall be deemed a judicial function and shall not be reviewable

if done in accordance with law." The Court of Appeals has long

interpreted that language – in both current and prior statutes –

to mean that "so long as the Board violates no positive statutory

requirement, its discretion is absolute and beyond review in the

courts" (Matter of Hines v State Bd. of Parole, 293 NY 254, 257

[1944]; see Matter of Silmon v Travis, 95 NY2d 470, 476-478

[2000]). In New York, it is "the . . . Board [that] holds the

power to decide whether to release a sentenced prisoner on

parole" (Matter of Silmon v Travis, 95 NY2d at 476). As the

Court of Appeals has explained, "[t]o require the [Board] to act

in accordance with judicial expectations . . . would

substantially undermine the [legislative] decision to entrust

release determinations to the [Board] and not the courts" (Matter

of Russo v New York State Bd. of Parole, 50 NY2d 69, 76-77 [1980]

[internal quotation marks omitted]). Absent failure by the Board

to comply with the mandates of Executive Law article 12-B,

"[j]udicial intervention is warranted only when there is a

'showing of irrationality bordering on impropriety'" (Matter of

Silmon v Travis, 95 NY2d at 476, quoting Matter of Russo v New

York State Bd. of Parole, 50 NY2d at 77; see Matter of Valderrama

v Travis, 19 AD3d 904, 905 [2005]). Thus, as the Court of

Appeals further stated in Silmon, "we review whether the Board's

decision to deny parole was arbitrary or capricious" (Matter of

Silmon v Travis, 95 NY2d at 476).1

1 In all CPLR article 78 proceedings to review

determinations that are not made after a quasi-judicial hearing

mandated by law, including this one, "the proper standard for
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Executive Law article 12-B mandates that "[d]iscretionary

release on parole shall not be granted merely as a reward for

good conduct" (Executive Law § 259-i [2] [c] [A]). Rather, the

Board must consider whether "there is a reasonable probability

that, if such inmate is released, he [or she] will live and

remain at liberty without violating the law, and that his [or

her] release is not incompatible with the welfare of society and

will not so deprecate the seriousness of his [or her] crime as to

undermine respect for law" (Executive Law § 259-i [2] [c] [A]). 

The decision to grant parole release is discretionary, but the

Board is required to consider certain guidelines in making its

determination (see Matter of Silmon v Travis, 95 NY2d at 477). 

Those guidelines include the inmate's institutional record (goals

and accomplishments, academic achievement, vocational education,

training and work assignments, therapy and interaction with

staff), release plans, statements by the crime victim, the

seriousness of the offense considering type and length of

judicial review . . . is whether the Board's determination was

arbitrary and capricious or an abuse of discretion (see CPLR 7803

[3])" (Matter of Beck-Nichols v Bianco, 20 NY3d 540, 559 [2013];

see Matter of Pell v Board of Educ. of Union Free School Dist.

No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34

NY2d 222, 231 [1974]). "Arbitrary action is without sound basis

in reason and is generally taken without regard to the facts";

or, put differently, "[r]ationality is what is reviewed under

. . . the arbitrary and capricious standard" (Matter of Pell v

Board of Educ. of Union Free School Dist. No. 1 of Towns of

Scarsdale & Mamaroneck, Westchester County, 34 NY2d at 231

[emphasis added]). Contrary to the dissenters' views, our

application of the arbitrary and capricious – that is,

rationality – standard of judicial review amounts to neither an

"assert[ion] that this clearly extraordinary case is not

susceptible to reversal upon judicial review" (infra at 18

[Garry, J., dissenting]) or "simply ratifying decisions made by

the Board so long as it adheres to the statutory mandates" (infra

at 14 [Peters, P.J., dissenting]). Rather, in our view, the

Board's determination evinces a clearly reasoned basis that finds

foundation in the facts of this matter and, therefore, is not

irrational bordering on impropriety, as explained below. 
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sentence, recommendations of the sentencing court and district

attorney, the presentence probation report, mitigating or

aggravating factors to the crime, activities following arrest

prior to confinement, and prior criminal record (Executive Law

§ 259-i [2] [c] [A] [i], [iii], [v], [vii], [viii]).

While the Board is required to detail the reasons for a

denial of discretionary release (see Executive Law § 259-i [2]

[a] [i]), the Court of Appeals has ruled that the "Board need not

expressly discuss each of these guidelines in its determination"

(Matter of King v New York State Div. of Parole, 83 NY2d 788, 791

[1994]), and we are bound by that ruling. The Court of Appeals

has also explained that "the statutory scheme is such that no

judicial review of the merits in any case is possible" (Matter of

Hines v State Bd. of Parole, 293 NY at 257 [emphasis added]).2

These principles, which are derived from the statute itself,

underlie our limited and deferential review of the Board's

decisions. Consistent with them, we have ruled that "our role is

not to assess whether the Board gave the proper weight to the

relevant factors" in reviewing the Board's determination that the

violent nature of the crimes for which petitioner was convicted

outweighed his exemplary institutional behavior and extensive

evidence of rehabilitation (Matter of Comfort v New York State

Div. of Parole, 68 AD3d 1295, 1296 [2009]). In that case, we

explained that, although we review the Board's ultimate

determination on a standard of "irrationality bordering on

impropriety" (Matter of Comfort v New York State Div. of Parole,

68 AD3d at 1297 [internal quotation marks and citations

omitted]), we cannot "effectively review the Board's weighing

process, given that it is not required to state each factor that

it considers, weigh each factor equally or grant parole as a

2 Again, our acknowledgment that this case is not subject

to review on the merits does not imply that we are "abdicat[ing]

our critical judicial function" (infra at 18 [Garry, J.,

dissenting]). Rather, it is a recognition of the distinction

between de novo review on the merits, and the "extremely

deferential[, . . .] proper standard for judicial review in these

cases" – whether the Board's determination was arbitrary and

capricious (Matter of Beck-Nichols v Bianco, 20 NY3d at 559). 
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reward for exemplary institutional behavior" (id. at 1296

[emphasis added]). 

In that regard, the Court of Appeals has held that the

Board rationally denied parole release to a petitioner – who "was

a productive citizen and model prisoner [and] who

enthusiastically engaged in educational and vocational programs,

taught other prisoners and wrote about prison life" – based upon

the brutality of his crime and his continuing to maintain his

innocence of that crime (Matter of Silmon v Travis, 95 NY2d at

477). Similarly, this Court has repeatedly held – both recently

and historically – that, so long as the Board considers the

factors enumerated in the statute, it is "entitled . . . to place

a greater emphasis on the gravity of [the] crime" (Matter of

Montane v Evans, 116 AD3d 197, 203 [2014], lv granted 23 NY3d 903

[2014] [internal quotation marks and citation omitted]; see

Matter of Williams v New York State Div. of Parole, 114 AD3d 992,

992-993 [2014]; Matter of Lashway v Evans, 110 AD3d 1417, 1418

[2013]; Matter of McCaskell v Evans, 108 AD3d 926, 927 [2013];

Matter of Viglotti v State of N.Y. Exec. Div. of Parole, 98 AD3d

789, 790 [2012], lv dismissed 20 NY3d 1034 [2013]; Matter of

Gonzalez v Chair, N.Y. State Bd. of Parole, 72 AD3d 1368, 1369

[2010]; Matter of Lue-Shing v Pataki, 301 AD2d 827, 828 [2003],

lv denied 99 NY2d 511 [2003]; People ex rel. McCormack v New York

State Bd. of Parole, 244 AD2d 673, 673 [1997]; Matter of Walker v

New York State Div. of Parole, 203 AD2d 757, 758-759 [1994];

Matter of Ittig v New York State Bd. of Parole, 59 AD2d 972

[1977], lv denied 43 NY2d 648 [1978]; but see Matter of King v

New York State Div. of Parole, 190 AD2d 423, 434 [1993], affd on

other grounds 83 NY2d 788 [1994] [a First Department case

holding, in conflict with our precedent, that the Board may not

deny discretionary release based solely on the nature of the

crime when the remaining statutory factors are considered only to

be dismissed as not outweighing the seriousness of the crime]).

Particularly relevant here, we have held that, even when a

petitioner's institutional behavior and accomplishments are

"exemplary," the Board may place "particular emphasis" on the

violent nature or gravity of the crime in denying parole, as long

as the relevant statutory factors are considered (Matter of
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Valderrama v Travis, 19 AD3d at 905). In so holding, we

explained that, despite petitioner's admirable educational and

vocational accomplishments and positive prison disciplinary

history, "[o]ur settled jurisprudence is that a parole

determination made in accordance with the requirements of the

statutory guidelines is not subject to further judicial review

unless it is affected by irrationality bordering on impropriety"

(id. [internal quotation marks and citations omitted]). We

emphasize that this Court has repeatedly reached the same result,

on the same basis, when reviewing denials of parole to

petitioners whom we recognized as having exemplary records and as

being compelling candidates for release (see Matter of Comfort v

New York State Div. of Parole, 68 AD3d at 1296-1297; Matter of

Cruz v New York State Div. of Parole, 39 AD3d 1060, 1061-1062

[2007]; Matter of Guerin v New York State Div. of Parole, 276

AD2d 899, 900 [2000]; see also Matter of Garofolo v Dennison, 53

AD3d 734, 734-735 [2008]; Matter of Montalvo v New York State Bd.

of Parole, 50 AD3d 1438, 1438-1439 [2008]; Matter of Sanchez v

Dennison, 21 AD3d 1249, 1249-1250 [2005]; Matter of Mandala v

Dennison, 20 AD3d 757, 757-758 [2005], lv denied 5 NY3d 714

[2005]; Matter of Rivera v Travis, 289 AD2d 829, 830 [2001]).

Evaluating the Board's written determination here in the

context of the parole hearing transcript (see Matter of Siao-Pao

v Dennison, 11 NY3d 777, 778 [2008]; Matter of Montane v Evans,

116 AD3d at 203 n 2), we conclude that the Board properly

considered the necessary factors in denying petitioner's request

for parole release and founded its determination upon the facts

of this particular case. Indeed, the record is replete with

evidence that the Board reviewed, considered and discussed the

relevant factors, as well as the facts of the underlying crime. 

Specifically, the Board explored in detail petitioner's

rehabilitative efforts, educational and institutional

achievements, release plans, COMPAS Risk and Needs Assessment

instrument, lack of criminal history, evident remorse and

insight, numerous letters of support, clean disciplinary record

and the sentencing minutes, in addition to the seriousness of the

crime and his initial failure to cooperate with law enforcement

agents, which allowed his accomplices to escape conviction. With

respect to the seriousness of the crime, it is worth noting that

– as the Board recognized – petitioner was convicted of murder
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under the felony murder statute, under which, "[b]y operation of

law, the intent necessary to sustain a murder conviction is

inferred from the intent to commit a specific, serious, felonious

act, even though the defendant, in truth, may not have intended

to kill" (People v Stokes, 88 NY2d 618, 623 [1996]; see People v

Cahill, 2 NY3d 14, 67 [2003]). Thus, while the facts as set

forth in the record strongly support petitioner's claim that he

did not shoot the victim or intend to murder him, "in the eyes of

the law, [he] brutally killed [a police officer]" (Matter of

Silmon v Travis, 95 NY2d at 477-478). 

In our view, the Board neither failed to comply with the

requirements of the statutory guidelines nor engaged in

irrationality bordering on impropriety. This is not a case in

which, for example, the Board irrationally concluded – in glaring

contradiction with both the facts in the record and the normal

limits of human capability, and without a sound basis in reason –

that a nearly 90-year-old, terminally ill cancer patient with

additional debilitating medical conditions that required

continuous medical care had "a propensity for extreme violence"

based solely on the nature of the crime (Matter of Friedgood v

New York State Bd. of Parole, 22 AD3d 950, 951 [2005]). Nor is

this a case in which the Board "considered factors outside the

scope of the applicable statute," such as penal philosophy and

the historical treatment of murderers (Matter of King v New York

State Div. of Parole, 83 NY2d at 791) or in which the hearing

transcript suggests that the Board improperly imposed a "burden

[on petitioner] to demonstrate that his release would somehow

enhance society" (Matter of Prout v Dennison, 26 AD3d 540, 541

[2006]). Rather, the record establishes that the Board

acknowledged petitioner's extensive rehabilitative success along

with the additional statutory factors, but placed greater

emphasis on the seriousness of petitioner's crime in its

determination that release would be incompatible with the welfare

of society and so deprecate the seriousness of the crime as to

undermine respect for the law, as it is "entitled" to do (Matter

of Montane v Evans, 116 AD3d at 203). We are thus constrained to

affirm – to do otherwise is to implicitly overrule the decades of

our well-settled jurisprudence set forth above (see e.g. Matter

of Comfort v New York State Div. of Parole, 68 AD3d at 1296-1297;

Matter of Cruz v New York State Div. of Parole, 39 AD3d at 1061-
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1062; Matter of Valderrama v Travis, 19 AD3d at 905; Matter of

Guerin v New York State Div. of Parole, 276 AD2d at 900).

That said, this Court is persuaded that petitioner's

achievements during his incarceration have been extraordinary. 

Petitioner has, among other things, earned a Bachelor's degree

from Nyack College and a Master's degree from New York

Theological Seminary, participated in myriad programs through the

prison system, and acted as a teacher and mentor to dozens of

current and former inmates. Most notable are the numerous

letters that petitioner submitted advocating for his release,

including letters from the former Commissioner of Corrections and

Community Supervision, the former Chair of the Division of

Parole, and the Assistant District Attorney who prosecuted

petitioner. In addition, the Superintendent of Fishkill

Correctional Facility opined that he "would be fine having

[petitioner] and his family as [his] neighbors," and 18

correction officers and other correction employees submitted

letters further supporting petitioner's release. As one Board

commissioner acknowledged – before voting against petitioner's

release in a split decision – "anyone would be hard pressed to

argue that [petitioner was not] rehabilitated."3

3 We interpret the same commissioner's frank acknowledgment

that if petitioner was denied release, "the reason [he] would be

held is because a police officer was murdered in the line of

duty," as a recognition that petitioner would be released unless

the Board determined that the seriousness of the crime outweighed

the remaining statutory factors. Similarly, that commissioner's

explanation that he found petitioner's description of the crime

"difficult . . . to fathom" based upon his own experience does

not amount to a misunderstanding of the facts of the crime or

consideration of improper factors, as the dissenters assert. 

That commissioner's discussion of the facts of the crime as set

forth in the record was accurate, and he conceded that "maybe

[petitioner was] telling the truth," but nevertheless expressed

his doubts about petitioner's "credibility," given that

petitioner "could have resolved all of this" at the time of the

incident, but instead "engaged in a pattern of lies from the

outset about what happened." A petitioner's willingness to admit
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Nevertheless, our view on whether petitioner is a "prime

candidate for parole release" is not the relevant question before

us (Matter of Cruz v New York State Div. of Parole, 39 AD3d at

1062). Petitioner's record, while compelling, provides no basis

for overturning our settled precedent and for failing to apply

the relevant decisions of the Court of Appeals; nor do the 2011

amendments to Executive Law article 12-B. As this Court has

already concluded, those amendments did not "transform[] or

otherwise alter[] the obligations of either the Board in

articulating its determinations or this Court in reviewing such

determinations" (Matter of Montane v Evans, 116 AD3d at 203-204 n

2). In short, the statutory language of Executive Law § 259-i

(5) dictating our limited power of review and the interpretation

of that language by the Court of Appeals remain unchanged. 

Accordingly, inasmuch as the Board has not violated the statutory

mandates and its determination does not exhibit irrationality

bordering on impropriety under either our precedent or that of

the Court of Appeals, "its discretion is absolute and beyond

review in the courts" (Matter of Hines v State Bd. of Parole, 293

NY at 257; see Matter of Silmon v Travis, 95 NY2d at 476-477).

Finally, we have previously considered and rejected

petitioner's arguments that the 2011 amendments to Executive Law

§ 259-c (4) required the promulgation of formal rules or

regulations (Matter of Montane v Evans, 116 AD3d at 202-203). 

Petitioner's remaining contentions have been either rendered

academic by our decision or, upon consideration, found to be

lacking in merit.

Rose, J., concurs.

to the facts of the crime and a consideration of the petitioner's

activities following arrest and prior to confinement – here, the

"pattern of lies" and petitioner's refusal to cooperate with law

enforcement – are factors within the scope of the statute (see

Executive Law § 259-i [2] [c] [A] [vii]; Matter of Silmon v

Travis, 95 NY2d at 477-478). 
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Egan Jr., J. (concurring).

On February 11, 1982, James Carragher, an off-duty police

officer, was walking home from work when he was accosted, robbed

and murdered on a street in Brooklyn. Upon reviewing the

extensive record before this Court, I fully agree with the

majority that the determination rendered by the Board of Parole

in this matter was neither arbitrary and capricious nor

constituted an abuse of discretion, and I am similarly satisfied

that, contrary to the view expressed by my dissenting colleagues,

the Board's decision was not premised upon a misunderstanding of

the relevant facts or the consideration of improper factors. 

Indeed, my analysis of the record leads me to conclude that the

Board's decision to deny parole to petitioner under the

circumstances presented here was entirely proper, and I write

separately only to comment briefly upon the impact of

petitioner's institutional record and the seriousness of the

underlying offense.

As the majority aptly observes, parole is not a reward for

good behavior in prison (see Executive Law § 259-i [2] [c] [A];

Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]; Matter of

Robles v Fischer, 117 AD3d 1558, 1559 [2014]; Matter of Mentor v

New York State Div. of Parole, 87 AD3d 1245, 1246 [2011], lv

denied 18 NY3d 803 [2012], cert denied ___ US ___, 132 S Ct 2437

[2012]), and although petitioner has made significant strides

while incarcerated, his institutional record in no way alters the

fact that he stands convicted of society's most heinous crime –

the taking of a fellow human being's life. Similarly, the mere

fact that certain of the statutory factors and guidelines (see

Executive Law § 259-i [2] [c] [A] [i], [iii], [vii], [viii])

militate in petitioner's favor or that petitioner scored well on

the COMPAS Risk and Needs Assessment instrument neither

undermines nor negates the seriousness of his offense. In this

regard, the prevailing case law – as extensively summarized by

the majority – makes clear that, so long as the Board considers

the relevant statutory factors, it is free to place "particular

emphasis" on the gravity of the underlying crime (Matter of

Valderrama v Travis, 19 AD3d 904, 905 [2005]). As I am satisfied

that the Board indeed gave appropriate consideration to all of

the relevant statutory factors and, further, did not abuse its
-11- 518301 

discretion in emphasizing the nature of petitioner's crime in

denying his request for parole, I discern no basis upon which to

disturb the Board's determination.

Peters, P.J. (dissenting).

Over 30 years ago, petitioner was sentenced to 18 years to

life in prison for his role in the crimes that led to the death

of an off-duty police officer. He remains behind bars, having

been denied parole seven times during that period, the most

recent of which – decided by a two-to-one vote of the Board of

Parole – is now before us. The majority has concluded that the

Board's decision to deny parole to petitioner during this latest

appearance did not exhibit "'irrationality bordering on

impropriety'" (Matter of Silmon v Travis, 95 NY2d 470, 476

[2000], quoting Matter of Russo v New York State Bd. of Parole,

50 NY2d 69, 77 [1980]). I respectfully disagree. 

In my view, the Board's decision was based upon significant

errors of fact and the consideration of improper factors. As the

parole hearing minutes reveal, the Board's decision was made by

the closest of margins (two commissioners voted to deny parole

and one dissented), such that any error should be considered

relevant to the determination. In that regard, one of the

commissioners who voted against petitioner's release acknowledged

that "anyone would be hard pressed to argue that [petitioner is]

not . . . rehabilitated," but professed his belief that

petitioner's achievements were contrasted by his "conduct in

shooting this officer." This commissioner further articulated

his belief that petitioner might have been the one to pull the

trigger by opining that it was "difficult for [him] to fathom how

if the man with the gun is the one who's right on top of this

officer stealing his property, how [petitioner got] shot and

[petitioner's coconspirator did not] get shot." Yet, petitioner

was not the shooter. In fact, he was not even armed. The

Assistant District Attorney who prosecuted petitioner wrote a

letter in support of petitioner's release in 2010, stating "with

certainty that before the case went to the jury, I was convinced

that [petitioner] was not the shooter. I am also certain that

[Supreme Court] was convinced that he was not the shooter." In a
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subsequent letter written in support of the instant parole

application, he wrote that "there was not a scintilla of evidence

that [petitioner] was the shooter" and that "no one involved in

the investigation ever believed that [petitioner] was the shooter

or that he was armed." Indeed, during sentencing, Supreme Court

stated that "[petitioner] stands before me having been found by

the jury to have been a participant, but not the active prime

mover. It is on that basis that he must be sentenced." 

Petitioner, who had no prior criminal record and could have

received consecutive sentences amounting to an aggregate prison

sentence of 371⁄2 years to life, was sentenced to less than half of

that. 

This same commissioner also relied on his own subjective

beliefs and experiences to interpret the facts in a manner

contrary to the record by suggesting that petitioner was aware at

the time of the incident that the victim was a police officer. 

Petitioner steadfastly maintained that he was unaware of such

fact at any time during the course of events, and the record

supports his assertion. Supreme Court described the victim as "a

55-year-old man . . . carrying a black gym bag[,] wearing a cap,

corduroy pants and a coat," and the prosecuting attorney wrote

that the victim was "dressed in clothes that suggested he was a

middle-aged manual laborer." Yet this commissioner opined that,

based upon his own training in the police academy, "when you're

pulling out your gun, the first words that are supposed to

simultaneously come off your lips is 'police.'" The emphasis

that this commissioner placed on his belief that the victim must

have identified himself as a police officer can only be viewed as

relevant if it was also his belief that petitioner was the

shooter; indeed, he stated that in his 20 years of experience in

the system, "every single person who is charged with shooting an

officer says [the victim] didn't say who he was." 

Also troubling are repeated comments made by this same

commissioner indicating that, because petitioner initially failed

to cooperate with police in 1982 and neither of his two

coconspirators were ever charged for their role in the offenses,

petitioner put himself in the "precarious position" of being the

only person who could be held accountable for the crimes. This

commissioner implied that someone must continue to be punished
-13- 518301 

for the unfortunate death of this police officer and, absent the

ability to punish the most culpable party, petitioner must

continue to pay that price in his stead. Manifestly, such

punitive considerations find no support in statute (see Executive

Law § 259-i) and have absolutely no relevance to the decision to

grant or deny parole.1 As the Board's determination was tainted

by these factual errors and improper considerations, it must be

annulled (see Matter of King v New York State Div. of Parole, 83

NY2d 788, 791 [1994]; Matter of Prout v Dennison, 26 AD3d 540,

541 [2006]; Matter of Friedgood v New York State Bd. of Parole,

22 AD3d 950, 951 [2005]).

Even had such blatant factual errors and inappropriate

considerations not affected the outcome, I would still find the

Board's decision to be irrational. To be sure, pursuant to the

governing statute and early Court of Appeals precedent governing

the review of parole decisions, the courts' role appeared to be

limited to discerning errors of fact or law (see Executive Law §

1 To be clear, by no means am I suggesting that the

consideration of petitioner's conduct after arrest and prior to

confinement are irrelevant; rather, I am asserting only that it

was improper for the Board to attribute relevance to the fact

that petitioner was the only culprit who could continue to be

held accountable for the crime. In any event, the commissioner's

statement that it was petitioner's "pattern of lies" and deceit

that allowed the other perpetrators to escape prosecution, and

which left petitioner in the "precarious position" of being the

only one that could be held accountable for the crime, is

contrary to the facts. The Assistant District Attorney who

prosecuted petitioner unequivocally stated in his letter in

support of petitioner's release application that the police were

already aware of the other perpetrators' involvement in the

crime, and that there was no other information petitioner could

have provided that would have aided in the investigation and

prosecution of those other individuals. In fact, noticeably

absent from the record is any explanation as to why the other

perpetrators were not prosecuted. Certainly, petitioner should

not be penalized for law enforcement activities and/or decisions

over which he had no control.
-14- 518301 

259-i [5]; Matter of Hines v State Bd. of Parole, 293 NY 254, 257

[1944]). However, more recent Court of Appeals jurisprudence,

now well settled, propounds a more discerning standard under

which such decisions should be reviewed for "irrationality

bordering on impropriety" (Matter of Silmon v Travis, 95 NY2d at

476 [internal quotation marks and citation omitted]; see Matter

of Partee v Evans, 117 AD3d 1258, 1259 [2014]). In my view, this

language suggests that – more than simply ratifying a decision

made by the Board so long as it adheres to the statutory mandates

– the role of the courts is to make some measure of substantive

evaluation to assure that justice is served. As the Court of

Appeals taught in Silmon, "we review whether the Board's decision

to deny parole was arbitrary or capricious" (Matter of Silmon v

Travis, 95 NY2d at 476).2 

Applying this standard, I fully acknowledge that parole

release is not granted merely as a reward for good conduct, and

that the decision to grant or deny parole rests primarily within

the discretion of the Board. I am also well aware that the

showing required to set aside a parole decision is, indeed, a

weighty one.3 However, given the lack of any evidence to support

the Board's finding that there is a reasonable probability that

petitioner would commit further crimes if released, and that his

release would be incompatible with the welfare of society and

undermine respect for the law, I find the Board's determination

to be patently irrational.

The majority rightly notes that petitioner's achievements

while incarcerated are truly remarkable and extraordinary, but in

light of the task at hand, those accomplishments are worthy of

iteration. Petitioner, who entered prison at the age of 20 with

2 I am not challenging the rationality standard governing

our review of parole decisions, as the majority suggests. 

Rather, I take issue with the majority's application of that

standard to the facts of this case.

3 Such awareness is evinced by this dissent – the first

dissent that I have penned from a decision of the Board in my

over two decades on this Court.
-15- 518301 

a high school diploma, has since earned both a Bachelor's degree

in organizational management and leadership skills and a Master's

degree in professional studies. Over the three decades of his

incarceration, petitioner has assumed the role of adjunct

instructor and academic assistant through Nyack College and the

New York Theological Seminary, and has also become the

facilitator or coordinator for at least eight distinct programs

within his current and former correctional facilities. 

Throughout his incarceration, petitioner has successfully

participated in nearly every rehabilitative program available to

him, including several years of therapeutic counseling focused in

part on taking responsibility for his crime, services to prepare

him for his transition out of prison and programs addressing,

among other areas, marriage, parenting and alternatives to

violence. Through these efforts, petitioner has fully accepted

responsibility for his actions and has repeatedly expressed

sincere remorse for all of those affected by his crime,

particularly the family of the victim. In a personal statement

in his application for release to community supervision,

petitioner stated that "[s]ince the pain I have caused . . .

remains in my heart, my life and actions will always demonstrate

atonement." A practitioner who worked with petitioner stated

that he "exemplifies the transformation toward responsibility,

remorse, and making amends that we seek to achieve with all of

our participants." 

In addition, petitioner has not only maintained employment

during his incarceration, serving most recently as the Inmate

Director of the Transitional Services Program in which he

oversees 15 to 20 other inmates, but also continues to work

extensively to promote the rehabilitation of other inmates.

Petitioner worked to create the Stop the Violence Peace

Initiative at Sing Sing Correctional Facility to address violence

within the prison and helped to raise $10,000 for the prison's

Family Center, as well as for activities and school supplies for

the children of inmates. He has established plans for employment

outside of prison and successful integration back into the

community in the form of letters of reasonable assurance from

three organizations for employment and counseling, as well as

close relationships with two established mentors. If released,

petitioner would live with his wife, who he has known for more
-16- 518301 

than 30 years, and enjoy the support of a large network of

friends and family. 

Petitioner's behavioral record during his approximately 30

years of incarceration is extraordinary. He has incurred only

one infraction ticket – and that almost a quarter century ago –

for excess/altered clothing.4 Moreover, according to both an

independent psychological evaluation and his COMPAS Risk and

Needs Assessment instrument, he is at the lowest possible risk

level for reoffending. The author of the former evaluation

stated that "[t]here is nothing further [petitioner] could be

expected to do while incarcerated that could lower his risk

level." 

Over the years, petitioner has received an unprecedented

outpouring of support and advocacy for his release by, among

others, over 20 correction staff who supervise him on a daily

basis, a former parole commissioner, the former Commissioner of

Corrections and Community Supervision and the Assistant District

Attorney who prosecuted his case. The Superintendent of Fishkill

Correctional Facility, where petitioner is currently

incarcerated, also wrote two letters in support of petitioner's

release, one stating that he "would be fine having [petitioner]

and his family as [his] neighbors" and the other calling

petitioner "the poster child for [the Department of Corrections

and Community Supervision]" and its programs.5 A retired parole

commissioner who denied petitioner's release in 2002 and 2006

wrote that he "strongly feel[s]" that petitioner "does [not]

deserve to spend the remainder of his life incarcerated." 

Hundreds of other inmates and members of petitioner's community

submitted letters of support or signed petitions in support of

his release, prompting one commissioner to state, "I don't think

4 It bears repeating that petitioner had never been

convicted of a crime prior to that which resulted in his

incarceration.

5 Notably, Superintendent William J. Connolly shared that,

in his 34 years in the corrections field, he authored only seven

letters of this nature. 
-17- 518301 

I've ever seen this many letters by correction officers in

anyone's file," and another commissioner to remark that, as "one

of the longest serving currently on the [B]oard . . ., [he had

not] seen the amount of support that [petitioner has]." 

Despite this abundance of evidence demonstrating

petitioner's extraordinary rehabilitative achievements that would

appear to strongly militate in favor of granting parole, two

commissioners declined to do so, seemingly on the sole basis that

a police officer was killed during the course of an attempted

robbery. As one of those commissioners frankly stated to

petitioner during the hearing, "if you're held, the reason you

would be held is because a police officer was murdered in the

line of duty." "The Legislature, however, has not defined

'seriousness of [the] crime' in terms of specific categories of

either crimes or victims" (Matter of King v New York State Div.

of Parole, 190 AD2d 423, 433 [1993], affd 83 NY2d 788 [1994]). 

There can be no dispute that the crimes for which petitioner was

convicted are serious and resulted in the tragic death of a

police officer, but a blind eye cannot be turned to the facts

underlying those offenses. Not insignificantly, petitioner was

convicted of murder under the felony murder statute, requiring an

intention on the part of petitioner to commit the underlying

felony, but not requiring proof that he fired the weapon or had

an intention to kill (see Penal Law § 125.25 [3]). Indeed, upon

sentencing, Supreme Court noted that the evidence demonstrated

that petitioner "did not go out into the street with the

intention of committing murder." Although "every murder

conviction is inherently a matter of the utmost seriousness since

it reflects the unjustifiable taking and tragic loss of a human

life . . ., the Legislature has determined that a murder

conviction per se should not preclude parole" (Matter of King v

New York State Div. of Parole, 190 AD2d at 433; see also Matter

of Costello v New York State Bd. of Parole, 101 AD3d 1512, 1517

[2012, Spain, J. dissenting], revd on other grounds ___ NY3d ___,

2014 NY Slip Op 04805 [2014] [noting that "those who oppose

petitioner's parole release openly advocate the recurring

position that an inmate convicted for the death of a law

enforcement officer — even a nonshooter convicted of felony

murder, as here — should never be released on parole. It bears

emphasis that this was not and is not the law."]).
-18- 518301 

Upon considering all of the evidence, I am left with the

inescapable conclusion that the Board's decision to deny parole

release to petitioner was irrational. Accordingly, I would

reverse the judgment, annul the Board's determination and remit

the matter to the Board for further proceedings not inconsistent

with this decision.

Garry, J. (dissenting).

I fully agree with the dissent; however, I write separately

to raise an additional issue. As previously stated in my

concurring opinion in Matter of Montane v Evans (116 AD3d 197,

205 [2014], lv granted 23 NY3d 903 [2014]), I believe that our

own Court has established an overbroad rule in appeals from

denials of parole. The majority asserts that this clearly

extraordinary case is not susceptible to reversal upon judicial

review; we have then wholly abdicated our critical judicial

function, and the courthouse doors are closed. For all the

reasons stated in the thorough analysis of the Presiding Justice,

this determination was irrational. No sound basis supports this

individual's continuing incarceration. While our review powers

are limited, they should not be applied in a manner that is so

inordinately deferential as to render the appellate review

process a mere sham.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court