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FINDING OF CIVIL CONTEMPT AGAINST THE CHAIR OF THE NYS PAROLE BOARD WAS WARRANTED, ALTHOUGH ORDERED TO CONDUCT A DE NOVO HEARING ON PETITIONER-INMATE’S APPLICATION FOR RELEASE ON PAROLE, THE EVIDENCE SUPPORTED THE CONCLUSION THAT THE BOARD DENIED PAROLE BASED ON THE SEVERITY OF THE OFFENSE ALONE, WITHOUT CONSIDERING THE STRONG FACTORS WHICH FAVORED RELEASE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the Chair of the NYS Parole Board was properly held in contempt for failing to comply with an order granting petitioner, in inmate who had served 40 years in prison for murdering a police office, a de novo hearing on his application for parole release. The court noted that this is the first time a court had held a parole board chair in contempt. The court found that the Board based its denial of parole solely on the severity of the offense, and did not consider the strong factors favoring release, in violation of the order:

Here, under the unique facts of this particular case, we agree with the Supreme Court’s exercise of its discretion in granting the petitioner’s motion to hold the appellant … in civil contempt for the Board’s failure to comply with the Supreme Court’s judgment dated October 2, 2015. In the judgment dated October 2, 2015, the Supreme Court, after concluding, among other things, that the Board’s determination to deny parole release was not supported by an application of the factual record to the statutory factors set forth in Executive Law § 259-i, that the Board’s determination was based exclusively on the severity of the petitioner’s offense, and that there was no rational support in the record for the Board’s determination, remitted the matter to the Board “to make a de novo determination on petitioner’s request for parole release” to be held before a different panel of the Board.

As previously noted, the Board did not appeal from that judgment. Rather, it purported to comply with the judgment by rendering a new determination following a de novo interview before a different panel and, in its written decision and in the transcript of the interview, purported to comply with its responsibilities to consider the requisite statutory factors. However, the Supreme Court, after conducting an evidentiary hearing, decided that the Board again denied parole release exclusively on the basis of the underlying conviction without giving consideration to the statutory factors. Consequently, the Supreme Court held that a finding of civil contempt was warranted. Matter of Ferrante v Stanford, 2019 NY Slip Op 03334, Second Dept 5-1-19

 

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