State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 28, 2016 521536 

________________________________

In the Matter of DEMPSEY

HAWKINS,

Respondent,

v

OPINION AND ORDER

NEW YORK STATE DEPARTMENT OF 

CORRECTIONS AND COMMUNITY

SUPERVISION et al.,

Appellants.

________________________________

Calendar Date: February 17, 2016

Before: McCarthy, J.P., Egan Jr., Rose and Lynch, JJ.; 

 Garry, J., vouched in.

__________

Eric T. Schneiderman, Attorney General, Albany (Laura

Etlinger of counsel), for appellants.

Issa Kohler-Hausmann, New York City, for respondent.

New York Civil Liberties Union, New York City (Philip

Desgranges of counsel), and The Legal Aid Society, New York City

(Cynthia Conti-Cook of counsel), amici curiae.

__________

McCarthy, J.P.

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

entered May 14, 2015 in Sullivan County, which granted

petitioner's application, in a proceeding pursuant to CPLR

article 78 to, among other things, annul a determination of

respondent Board of Parole denying petitioner's request for

parole release.
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When petitioner was 16 years old, he strangled to death his

14-year-old girlfriend and then hid her body. Thereafter,

petitioner actively lied about his responsibility for the crime

for several months. Approximately two years after the crime, the

victim's body was discovered. Petitioner was eventually arrested

and then tried and convicted of murder in the second degree. He

was thereafter sentenced, in 1979, to a prison term of 22 years

to life. 

Petitioner has been denied parole release nine times since

becoming eligible for it in 2000. At the time of his March 2014

parole release hearing, at issue on this appeal, petitioner was

54 years old and had served 36 years of his sentence. Respondent

Board of Parole denied petitioner's request for parole release

upon the conclusion that, among other things, granting his

release "would so deprecate the seriousness of [his] offense as

to undermine respect for the law" and imposed a 24-month hold to

be followed by another appearance. When the Board's Appeals Unit

failed to rule on petitioner's administrative appeal within four

months (see 9 NYCRR 8006.4 [c]), petitioner commenced this

proceeding challenging the Board's determination, requesting

either his immediate release or a de novo parole release hearing. 

Supreme Court, among other things, annulled the determination,

remanded for a de novo parole release hearing and precluded one

of the Board's commissioners from participating in any future

parole proceedings involving petitioner.1

We agree with petitioner that, as a person serving a

sentence for a crime committed as a juvenile, petitioner has a

substantive constitutional right not to be punished with a life

sentence if the crime reflects transient immaturity and that

petitioner was denied his constitutional right to a meaningful

opportunity for release when the Board failed to consider the

significance of petitioner's youth and its attendant

circumstances at the time of the commission of the crime. The

1 Contrary to petitioner's argument, Supreme Court's

decision and order constituted an appealable final judgment (see

Matter of Duffy v New York State Dept. of Corr. & Community

Supervision, 132 AD3d 1207, 1208 n [2015]).
-3- 521536 

Board, as the entity charged with determining whether petitioner

will serve a life sentence, was required to consider the

significance of petitioner's youth and its attendant

circumstances at the time of the commission of the crime before

making a parole determination. That consideration is the minimal

procedural requirement necessary to ensure the substantive Eighth

Amendment protections set forth in Graham v Florida (560 US 48

[2010]), Miller v Alabama (___ US ___, 132 S Ct 2455 [2012]) and

Montgomery v Louisiana (___ US ___, 136 S Ct 718 [2016]). 

For the purposes of sentencing, "children are

constitutionally different from adults" (Montgomery v Louisiana,

136 S Ct at 733 [internal quotation marks and citation omitted];

see Miller v Alabama, 132 S Ct at 2458). This difference stems

from three primary distinctions: 

"First, children have a lack of maturity

and an underdeveloped sense of

responsibility, leading to recklessness,

impulsivity, and heedless risk-taking. 

Second, children are more vulnerable to

negative influences and outside pressures,

including from their family and peers;

they have limited control over their own

environment and lack the ability to

extricate themselves from horrific,

crime-producing settings. And third, a

child's character is not as well formed as

an adult's; his [or her] traits are less

fixed and his [or her] actions less likely

to be evidence of irretrievable depravity"

(Montgomery v Louisiana, 136 S Ct at 733

[internal quotation marks and citations

omitted]; see Miller v Alabama, 132 S Ct

at 2464; Roper v Simmons, 543 US 551, 569-

570 [2005]). 

For these reasons, primarily, "the case for retribution is not as

strong with a minor as with an adult" and "[t]he need for

incapacitation is lessened, too, because ordinary adolescent

development diminishes the likelihood that a juvenile offender
-4- 521536 

forever will be a danger to society" (Montgomery v Louisiana, 136

S Ct at 733 [internal quotation marks and citations omitted]; see

Miller v Alabama, 132 S Ct at 2465; Graham v Florida, 560 US at

71-72). Consistent with these conclusions, the Supreme Court of

the United States held in Miller v Alabama (supra) that mandatory

sentences of life without the possibility of parole for juvenile

homicide offenders violate the Eighth Amendment's prohibition on

cruel and unusual punishment (id. at 2460). As that Court has

since clarified, a substantive rule announced in Miller is "that

life without parole is an excessive sentence for children whose

crimes reflect transient immaturity" (Montgomery v Louisiana, 136

S Ct at 735). The Court considered this guarantee in the context

of the sentencing stage, and it found that the "procedural

requirement necessary to implement [this] substantive guarantee"

is "a hearing where youth and its attendant characteristics are

considered" for the purpose of "separat[ing] those juveniles who

may be sentenced to life without parole from those who may not"

(id. at 734-735 [internal quotation marks and citation omitted];

see Miller v Alabama, 132 S Ct at 2471). 

In addressing whether a juvenile's sentence must include

the possibility of parole, the Court has given some guidance as

to the promise that a parole determination represents. The Court

has clarified that the relevant distinction between a

constitutional and unconstitutional life sentence for a juvenile

homicide offender – for all but the rare case of an irreparably

corrupt juvenile – is that a constitutional sentence guarantees,

at some point, a "meaningful opportunity to obtain release"

(Graham v Florida, 560 US at 75; see Montgomery v Louisiana, 136

S Ct at 736).2 As the Court further made clear, it did not see

its role, upon reaching this conclusion, to prescribe a

2 Contrary to the dissent's suggestion, we do not contend 

that a sentence such as petitioner's "is the functional

equivalent of being sentenced to life in prison without the

possibility of parole," except where, as here, the Board deprives

an offender of a meaningful opportunity for release. We

understand the dissent to agree that petitioner's sentence

promised him a meaningful opportunity to obtain release, and thus

we perceive no disagreement on that point. 
-5- 521536 

particular opportunity for release that states must afford;

instead, the Court found that "[i]t is for the [s]tate, in the

first instance, to explore the means and mechanisms for

compliance" (Graham v Florida, 560 US at 75). Although the Court

has not specifically reviewed a case regarding a parole

determination for a juvenile homicide offender, it is axiomatic

that such an offender still has a substantive constitutional

right not to be punished with life imprisonment for a crime

"reflect[ing] transient immaturity" (Montgomery v Louisiana, 136

S Ct at 735). Further, the Court has made abundantly clear that

the "foundational principle" of the Eight Amendment jurisprudence

regarding punishment for juveniles is "that [the] imposition of a

[s]tate's most severe penalties on juvenile offenders cannot

proceed as though they were not children" (Miller v Alabama, 132

S Ct at 2466). A parole board is no more entitled to subject an

offender to the penalty of life in prison in contravention of

this rule than is a legislature or a sentencing court.

With this in mind, we reach petitioner's contention that he

was denied a meaningful opportunity for release.3 The Court has

found that, at the sentencing stage, a defendant who committed a

crime as a juvenile is procedurally entitled to a "hearing where

'youth and its attendant characteristics' are considered"4 in

3 Petitioner falls within the relevant class of persons due

to the fact that he was sentenced for a crime that he committed

as a juvenile and that, but for a favorable parole determination,

he will spend the remainder of his life in prison. "[T]he remote

possibility of [executive clemency] does not mitigate the

harshness of th[is] sentence" for Eighth Amendment purposes

(Graham v Florida, 560 US at 70).

4 The Court did not merely require an opportunity for a

defendant to argue that his or her youth mattered; "Miller

requires a sentencer to consider a juvenile offender's youth and

attendant characteristics" before punishing a defendant with a

life in prison (Montgomery v Louisiana, 136 S Ct at 734 [emphasis

added]). Even if the Court had not made this clear, a rule

satisfied by a finding that a petitioner had an opportunity to

advocate to the Board that it should consider his or her youth at
-6- 521536 

order to separate out those who can be punished by a life in

prison from those who cannot (Montgomery v Louisiana, 136 S Ct at

735, quoting Miller v Alabama, 132 S Ct at 2460). We agree with

petitioner that an analogous procedural requirement is necessary

at the parole release hearing stage. For those persons convicted

of crimes committed as juveniles who, but for a favorable parole

determination will be punished by life in prison, the Board must

consider youth and its attendant characteristics in relationship

to the commission of the crime at issue (see Hayden v Keller,

2015 WL 5773634, *8-10, 2015 US Dist LEXIS 134426, *22-29 [ED NC,

Sept. 25, 2015, No. 5:10-CT-3123 (BO)]; Greiman v Hodges, 79 F

Supp 3d 933, 944 [SD Iowa 2015]).5

Here, neither the hearing transcript nor the Board's

written determination6 reflects that the Board met its

the time of the crime would be particularly inappropriate in the

parole release determination setting. The Court of Appeals has

determined that potential parolees are not entitled to an

adversarial-type parole release hearing and, relatedly, concluded

that they have no right to be represented by counsel at such a

hearing (see Matter of Briguglio v New York State Bd. of Parole,

24 NY2d 21, 29 [1969]). The dissent apparently confuses our

conclusion here – that we will not find the Board to have

considered petitioner's youth at the time of the crime based on

the mere fact that petitioner argued that his youth should be

considered – with a claim that petitioner need not raise factors

before the Board. As that is not a claim that we make – and the

issue is irrelevant considering the fact that petitioner did

raise the issue of his youth before the Board – we see no need to

further address the dissent's contention in this regard. 

5 This format is consistent with Montgomery v Louisiana

(supra), which clarifies that a state "may remedy a Miller

violation by permitting juvenile homicide offenders to be

considered for parole, rather than by resentencing them" (id. at

736).

6 We are not persuaded by the fact that our dissenting

colleagues were able to find an example in a hearing transcript
-7- 521536 

constitutional obligation to consider petitioner's youth and its

attendant characteristics in relationship to the commission of

the crime.7 The Eighth Amendment "requires a sentencer to

consider a juvenile offender's youth and attendant

characteristics" before punishing an offender with a life in

prison (Montgomery v Louisiana, 136 S Ct at 734 [emphasis

added]). Because petitioner was entitled to a meaningful

opportunity for release in which his youth, and its attendant

characteristics, were considered by the Board, we agree with

Supreme Court that petitioner is entitled to a de novo parole

release hearing. 

from 2000 – eight parole hearings before the one that is actually

at issue — that evinces that at least one then-Board member

considered petitioner's development at the time of the crime in

reaching a parole determination that took place 14 years prior to

this determination. 

7 The one incidental remark by a commissioner indicating

that petitioner must have been particularly "cold and callous"

for someone his age due to the fact that he did not confess to

the authorities after the commission of his crime does not alter

this conclusion. The Eighth Amendment required inquiry into and

careful consideration of whether the "crime reflects transient

immaturity" (Montgomery v Louisiana, 136 S Ct at 735). Whether a

juvenile confessed to his or her crime is not relevant to that

inquiry. Moreover, the Court has made clear that the aspect of

youth that is relevant is "how children are different [from

adults], and how these differences counsel against" treating them

as though they were the same as adults (id. at 733 [internal

quotation marks and citations omitted]). The commissioner's

conclusion that a child who does not confess to a crime is more

morally culpable than an average child – who the commissioner

apparently believed would have confessed – did not follow or

constitute an inquiry regarding petitioner's maturation, or lack

thereof, since the time of the crime and in relationship to

becoming an adult (see Hayden v Keller, 2015 WL 5773634 at *3,

10, 2015 US Dist LEXIS at *6-9, 28-29 [parole scheme that only

considers youth in a manner irrelevant to the Eighth Amendment

fails to comply with that amendment]). 
-8- 521536 

Supreme Court, however, erred here in precluding one of the

Board's commissioners from participating in any future parole

proceeding involving petitioner.8 Petitioner did not request

such relief, and the record provides no basis for a conclusion

that the commissioner at issue is either unqualified or biased. 

The remaining arguments have been considered and are either

academic or without merit.

Garry, J. (concurring).

We fully concur with the analysis relative to the

constitutional infirmities in this record. We write separately

to emphasize that review of the record as a whole reveals

"irrationality bordering on impropriety," a degree of arbitrary

and capricious conduct permitting judicial intervention (see

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

quotation marks and citations omitted]). 

Although judicial review is strictly and exceptionally

limited relative to the scope and degree of analysis, respondent

Board of Parole is required to review and consider certain

statutory factors (see Executive Law § 259-i; Matter of Dolan v

New York State Bd. of Parole, 122 AD3d 1058, 1059 [2014], lv

denied 24 NY3d 915 [2015]; Matter of Hamilton v New York State

Div. of Parole, 119 AD3d 1268, 1269 [2014]; see also Matter of

Montane v Evans, 116 AD3d 197, 204-206 [2014] [Garry, J.,

concurring], appeal dismissed 24 NY3d 1052 [2014]). Among these

statutory factors, petitioner would be subject to immediate

deportation upon release from incarceration. Documentation in

the record reveals that his country of origin is fully ready to

receive him, with legal and other services available, and family

support awaiting. Further, petitioner has consistently

8 Notably, respondents do not challenge the portion of

Supreme Court's judgment dictating that the commissioners who sat

on this parole proceeding not sit on petitioner's de novo

hearing. As respondents inform us in their brief, the Board has

an internal procedure that would dictate the same result on this

issue regardless of Supreme Court's judgment. 
-9- 521536 

demonstrated exemplary conduct within the prison setting. He has

a minimal disciplinary history, having not been charged with any

offense of any nature since 2000; he has never been charged with

an infraction involving either violence or drug use in the entire

course of his incarceration, from 1979 at age 18 through his

hearing at age 54. He has an excellent history of program

participation and appears to have pursued every available

opportunity within the prison setting to develop himself, with

respect to skills as well as insight and maturity. 

Petitioner has expressed remorse for his conduct. The

record is replete with recommendations from a wide variety of

individuals who are apparently fully aware of the gravity and

heinous nature of petitioner's criminal conduct, but nonetheless

assert, based upon their experience and observations, that

petitioner has been rehabilitated during the course of his

lengthy confinement. Considering the record as a whole, together

with the substantial constitutional issues discussed in the

opinion of our colleague, we find that judicial intervention is

required here. We further agree that the portion of Supreme

Court's determination directing the adoption of a specific future

procedure by the Board must be reversed (see Matter of Hawthorne

v Stanford, 135 AD3d 1036, 1041-1042 [2016]). Accordingly, we

join in the opinion modifying the judgment, without reservation.

Lynch, J., concurs.

Egan Jr., J. (concurring in part and dissenting in part).

On May 15, 1976, the victim's parents called the police to

report that their 14-year-old daughter was missing. An

investigation and search immediately began and, after it was

discovered that petitioner – the victim's 16-year-old former

boyfriend – had been with the victim on the day that she was last

seen, petitioner was questioned by the authorities. Petitioner

denied having any knowledge of the victim's whereabouts and

actively participated in the search for her from May 1976 to

March 1977 – perpetuating her family's hope that she was still

alive and participating in what aptly has been described as a

hoax, casting himself in the role of a desperate teenager
-10- 521536 

frantically searching for the girl he loved. In reality,

however, petitioner – purportedly "distraught" over the victim's

decision to acquiesce to her parents' wishes and break up with

him – had devised a plan to lure the victim to a secluded

location whereupon he would kill the victim and then kill

himself.1 Petitioner partially executed that plan – strangling

the victim with a shirt and hiding her body in a 55-gallon drum,

which he then placed inside a 12-foot shaft of an abandoned

shipyard located at the tip of Staten Island. The victim's badly

decomposed remains were not discovered until nearly two years

later.

In the interim, petitioner continued to deny any

involvement in or responsibility for the crime and, recognizing

that he "wouldn't be able to uphold the facade" that he had

created if he remained in the area, eventually left to live in

another state. Petitioner remained out of state – attending high

school – for approximately one year, until his decision to

confide in certain friends resulted in his eventual arrest and

prosecution. In 1979, petitioner was sentenced upon his

conviction of murder in the second degree to a prison term of 22

years to life.2 Since becoming eligible for parole release in

1 When asked years later why he killed the victim,

petitioner replied, "I felt that I was in love with her. I felt

sexually obsessed. I couldn't possibly envision someone else

with her, and I felt the only – it's foolish to say, and

ludicrous, that I felt the only way to end my pain was through

murder." When asked why he participated in the search for the

victim, petitioner stated, "Because I was trying to maintain my

facade of innocence. I felt if I didn't participate, I would be

looked at as a suspect, and I was doing my best to evade my act." 

Petitioner further acknowledged that his participation in the

search was, at times, designed to "sabotage" the search effort

and "steer [searchers] away from where the [victim's] body was"

located.

2 Although petitioner allegedly admitted his crime to

certain court security officers after the jury returned its

verdict, he did not acknowledge his guilt to the victim's family
-11- 521536 

2000, petitioner has been denied release nine times based upon,

among other things, the nature of the underlying crime, which has

been variously – and appropriately – described as extremely

serious, heinous and bizarre. The majority now proposes to

afford petitioner a de novo parole hearing, finding that he has

not been afforded a "meaningful opportunity to obtain release"

(Graham v Florida, 560 US 48, 75 [2010]) and, further, that the

Eighth Amendment and the cases interpreting its application to

juvenile offenders (see Montgomery v Louisiana, ___ US ___, 136 S

Ct 718 [2016]; Miller v Alabama, ___ US ___, 132 S Ct 2455

[2012]; Graham v Florida, 560 US at 75) impose upon respondent

Board of Parole a requirement that it expressly consider – in the

context of petitioner's parole determination – petitioner's

"youth and its attendant characteristics" in relationship to the

murder that he committed nearly 40 years ago.

We agree that Supreme Court erred in precluding one of the

Board's commissioners from participating in any subsequent parole

hearing involving petitioner and, to that limited extent, we

concur in the majority's decision. As to the balance, however,

we are satisfied that New York's sentencing and parole procedures

afford petitioner a "meaningful opportunity to obtain release"

(Graham v Florida, 560 US at 75), which is all that Graham,

Miller, Montgomery and the Eighth Amendment itself require. 

Because we are of the view that no constitutional violation

occurred here, we respectfully dissent and would reverse Supreme

Court's judgment in its entirety and dismiss the petition.

Although the majority's decision discusses at length the

characteristics that distinguish juvenile offenders from adult

offenders and explores the reasons why traditional penological

goals – retribution, deterrence, incapacitation and

rehabilitation – do not, in all but the rarest of cases, justify

imposing the most severe sentence possible upon someone who

commits a crime before he or she is 18 years old, it glosses over

the underlying factual differences that distinguish petitioner

from the defendants in Graham, Miller and Montgomery — the most

notable of which being that, unlike the defendants in those

until 1989 or 1990.
-12- 521536 

cases, petitioner was not actually sentenced to life in prison

without the possibility of parole. In Graham, the 16-year-old

defendant was sentenced to, among other things, life in prison

following his conviction of armed burglary. As the state in

which he was sentenced (Florida) had abolished its parole system,

such defendant was – absent executive clemency – facing life in

prison without any possibility of parole (Graham v Florida, 560

US at 57). The Supreme Court of the United States held that the

Eighth Amendment prohibited a state from imposing a sentence of

life without the possibility of parole upon a juvenile

nonhomicide offender (id. at 74) – a determination grounded in

the belief that a state cannot determine, at the time of

sentencing, that such an offender "never will be fit to reenter

society" (id. at 75). In reaching that conclusion, the Court

cautioned that the Eighth Amendment does not require a state to

release a juvenile offender during his or her lifetime; rather,

the state need only afford the juvenile offender "some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation" (id.). The differences between petitioner and

the defendant in Graham are readily apparent – namely, that

petitioner was convicted of murder and was sentenced to a prison

term of 22 years to life in a state with an active parole system. 

Indeed, having appeared before the Board on multiple occasions,

there is no question that petitioner has been afforded an

opportunity for release – the adequacy of which will be discussed

infra.

The factual circumstances presented in Miller and

Montgomery are equally distinguishable from the matter now before

this Court. In Miller, the defendants were convicted of murder

in a state where the sentencing statutes "mandated that each

juvenile die in prison even if a judge or jury would have thought

that his youth and its attendant characteristics, along with the

nature of his crime, made a lesser sentence (for example, life

with the possibility of parole) more appropriate" (Miller v

Alabama, 132 S Ct at 2460). The requirement "that all children

convicted of homicide receive lifetime incarceration without

possibility of parole" (id. at 2475) and the corresponding

divestiture of any discretion to impose a lesser sentence

prompted the Court to conclude "that mandatory life without

parole for those under the age of 18 at the time of their crimes
-13- 521536 

violates the Eighth Amendment's prohibition on cruel and unusual

punishments" (id. at 2460 [emphasis added, internal quotation

marks omitted]). Again, petitioner was not sentenced to life

without the possibility of parole, nor was he subject to a

mandatory sentencing scheme such as the one at issue in Miller.

The Court's decision in Montgomery was even more narrowly

tailored – primarily focusing upon whether Miller had announced a

new rule of substantive law that, in turn, was entitled to

retroactive effect, i.e., whether the holding in Miller applied

to a juvenile defendant who was convicted in 1969 and, under

Louisiana law, automatically received a mandatory sentence of

life without the possibility of parole (Montgomery v Louisiana,

136 S Ct at 725-726). The Court answered that inquiry in the

affirmative, noting that "[a] [s]tate may remedy a Miller

violation by permitting juvenile homicide offenders to be

considered for parole, rather than resentencing them" (id. at

736). While the Court indeed made clear that such offenders

"must be given the opportunity to show [that] their crime did not

reflect irreparable corruption," it also reiterated that "[t]hose

prisoners who have shown an inability to reform will continue to

serve life sentences" (id.).

Even setting aside these factual distinctions and assuming,

as the majority posits, that petitioner falls within the ambit of

Graham and its progeny3 and, further, that the sentencing

3 To the extent that the majority suggests that the

sentence actually imposed upon petitioner – 22 years to life – is

the functional equivalent of being sentenced to life in prison

without the possibility of parole, we disagree. As noted

previously, petitioner was not subject to the mandatory

sentencing schemes at issue in Miller and Montgomery, and his

multiple appearances before the Board belie any assertion that a

determination was made, at the time of sentencing, that he "never

[would] be fit to reenter society" (Graham v Florida, 560 US at

75). More to the point, the mere fact that petitioner may well

spend the rest of his life in prison is not dispositive, as

nothing in Graham, Miller or Montgomery either compels the

eventual release of a juvenile offender such as petitioner or –
-14- 521536 

procedures at issue in those cases and the parole determination

under review here are governed by the same procedural safeguards4

– the key principle to be extracted from Graham, Miller and

Montgomery – that, in order to avoid an Eighth Amendment

violation, a juvenile offender must be given "some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation" (Graham v Florida, 560 US at 75) – was, in our

view, honored here. Executive Law § 259-i establishes a

procedure for affording inmates such as petitioner discretionary

release and sets forth the criteria that the Board must consider

in determining whether to grant release on parole (see Executive

Law § 259-i [2] [c] [A]). Among the criteria contained therein

is "the seriousness of the offense with due consideration to the

type of sentence, length of sentence and recommendations of the

sentencing court, . . . as well as consideration of any

mitigating and aggravating factors, and activities following

arrest prior to confinement" (Executive Law § 259-i [2] [c] [A]

in all instances – forecloses the possibility that such an

offender will die in prison. Hence, there is a strong argument

to be made that the holdings embodied in the cited cases do not

extend to petitioner in the first instance.

4 The majority's conclusion that petitioner's parole

determination is subject to the same procedural safeguards – and

must satisfy the same constitutional mandates – as those

applicable to the sentencing of a juvenile offender to a prison

term of life without the possibility of parole is, again, based

upon a faulty premise – namely, that denying petitioner parole,

after due consideration of all of the statutory factors set forth

in Executive Law § 259-i – is the same as having sentenced

petitioner to life in prison without the possibility of parole in

the first instance. As we believe that the sentencing and parole

phases of a criminal matter, as well as the interests and

reasonable expectations of an offender facing life in prison with

no possibility of parole versus an offender eligible for and

seeking discretionary relief, are fundamentally different, we do

not subscribe to the notion that the Eighth Amendment compels the

Board to expressly consider petitioner's "youth and its attendant

characteristics" in evaluating the propriety of his release.
-15- 521536 

[vii]).

Age at the time of the offense, together with what the

Supreme Court of the United States has characterized as a

juvenile's corresponding lack of maturity, sense of

responsibility and insight and increased risk of impulsivity and

recklessness, certainly would qualify as mitigating factors

within the meaning of the statute and could properly be

considered by the Board in assessing whether a particular

individual should be released on parole.5 Indeed, a review of

the transcripts of petitioner's various appearances before the

Board, including his most recent hearing in March 2014, reveals

that petitioner repeatedly raised – and the Board indeed was

aware of and considered – petitioner's age and asserted lack of

maturity at the time of the offense.6 As this Court has made

abundantly clear, "the Board [is] not required to give each

statutory factor equal weight" and, indeed, may place greater

emphasis upon the serious nature of the underlying crime (Matter

of King v Stanford, 137 AD3d 1396, ___, 26 NYS3d 815, 816 [2016];

see Matter of Feilzer v New York State Div. of Parole, 131 AD3d

1321, 1322 [2015]; Matter of Leung v Evans, 120 AD3d 1478, 1479

[2014], lv denied 24 NY3d 914 [2015]). Further, while the Board

must state the reasons for a denial of parole "in detail"

(Executive Law § 259-i [2] [a] [i]), it need not expressly recite

5 Although the majority suggests that it is inappropriate

to expect a potential parolee such as petitioner to raise such

factors before the Board, we do not see this as an unduly onerous

burden to impose upon someone seeking discretionary release.

6 For example, when petitioner appeared before the Board in

2000, one of the commissioners observed that petitioner's

"insight and depth of evaluation of the whole situation was

pretty weak at [the time of the offense], not very well

developed." Further, petitioner expressly raised his age and

lack of maturity at his appearances before the Board in 2002,

2010 and 2014 – drawing a distinction between the "well-balanced

adult" he sees himself as today and the "irrational 16 year old"

he was in 1976 and insisting that he is "not an incorrigible

career criminal."
-16- 521536 

each and every factor that it considered in reaching its

determination, nor must it discuss such factors at length (see

Matter of Duffy v New York State Dept. of Corr. & Community

Supervision, 132 AD3d 1207, 1208 [2015]; Matter of Leung v Evans,

120 AD3d at 1479; Matter of Montane v Evans, 116 AD3d 197, 203

[2014], appeal dismissed 24 NY3d 1052 [2014]). Upon reviewing

the transcript of petitioner's March 2014 appearance before the

Board, we are satisfied that the Board properly and adequately

considered petitioner's age and asserted immaturity at the time

of the offense before denying him discretionary release. As the

Board's determination does not exhibit "irrationality bordering

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

[2000] [internal quotation marks and citation omitted]) and, for

the reasons previously discussed, does not run afoul of the

Eighth Amendment, it should not be disturbed.

Rose, J., concurs.

ORDERED that the judgment is modified, on the law, without

costs, by reversing so much thereof as precluded a particular

commissioner of respondent Board of Parole from participating in

any future parole proceeding regarding petitioner, and, as so

modified, affirmed. 

ENTER:

Robert D. Mayberger

Clerk of the Court