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Revocation of Parole Based Upon Uncharged Assault Okay/Presence of Assault Victim at Revocation Hearing Excused

The Third Department determined petitioner’s parole was properly revoked even though the victim of the uncharged assault which triggered the revocation did not testify at the hearing:

Petitioner argues that he improperly was denied the opportunity to confront and cross-examine the victim.  While a “strong preference” for confrontation and cross-examination exists in parole revocation proceedings, the victim’s absence nevertheless may be excused “upon a specific finding of good cause” (…see Executive Law § 259-i [3] [f] [v]…).  Here, the victim refused to testify and could not be located despite extensive efforts by parole officials to do so.  Accordingly, the Administrative Law Judge properly excused her absence and considered other evidence regarding the assault … . Contrary to petitioner’s assertion, the fact the he was not indicted for any crimes stemming from the underlying assault did “not preclude a revocation of parole for the same conduct”… . Matter of Coston v NYS Division of Parole, 515013, 3rd Dept 11-21-13

 

Denial of Parole Supported by Evidence

In reversing Supreme Court, the Second Department determined the Parole Board’s denial of parole was not arbitrary and capricious.  After noting that the 2011 amendments to Executive Law 259-c(4) did not apply retroactively, the court wrote:

…[T]he Supreme Court erred in concluding that the Parole Board’s determination was arbitrary and capricious … . Although the Parole Board’s primary focus in denying parole was the nature of the crime committed, the Parole Board also looked at the petitioner’s institutional record … . The Parole Board “need not expressly discuss each of [the statutory guidelines] in its determination” …, and it was not “required specifically to articulate every factor considered” … . Whether the Parole Board considered the proper factors and followed the proper guidelines are questions that should be assessed based on the “written determination . . . evaluated in the context of the parole hearing transcript” … . Here, the hearing transcript indicates that the Parole Board gave due consideration to a number of factors that reflected well on the petitioner, but that these factors did not outweigh those factors that militated against granting parole. Matter of Fraser v Evans, 2013 NY slip Op 05900, 2nd Dept 9-18-13

 

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Defendant Did Not Consent to Entry of Police Into His Home—the Police Accompanied a Parole Officer for the Express Purpose of Investigating a Burglary—Motion to Suppress Should Have Been Granted

The Second Department determined evidence seized from defendant’s home and statements made by the defendant should have been suppressed.  Using the authority to visit parolees, the police accompanied the parole officer to defendant’s home as part of a burglary investigation. The defendant was arrested after stolen property was noticed by the police in the home.  In determining the trial court erred when it found defendant had consented to the entry of the police into his home, the court wrote:

When the People rely on consent to justify an otherwise unlawful police intrusion, they bear the “heavy burden” of establishing that such consent was freely and voluntarily given … . “Consent to search is voluntary when it is a true act of the will, an unequivocal product of an essentially free and unconstrained choice. Voluntariness is incompatible with official coercion, actual or implicit, overt or subtle” … . The People’s burden of proving voluntariness “cannot be discharged by showing no more than acquiescence to a claim of lawful authority” … .

We agree with the defendant that the People failed to prove that his consent to the entry into his home was voluntary. Consent is not voluntary where an officer falsely represents facts that normally establish the exercise of police authority to which a person would ordinarily yield … . Here, pursuant to the conditions of the defendant’s release to parole supervision, he was obligated to allow his parole officer to enter his home to conduct a home visit and conduct a related search of his residence. The People showed no more than the defendant’s acquiescence to this authority, which does not sustain their burden of proving that he freely and voluntarily consented to the entry by the detectives and the sergeant for the purpose of investigating the subject burglaries. People v Marcial, 2013 NY Slip Op 05920, 2nd Dept 9-18-13

 

Parole Board Should Have Used Risk Assessment Instrument

The Third Department determined an inmate was entitled to a new hearing on his request for discretionary parole release because the Board did not use the required written procedure for risk assessment:

[The inmate argued] the Board improperly failed to utilize a “COMPAS Risk and Needs Assessment” instrument in connection with the relevant amendments to Executive Law § 259-c (4), which became effective October 1, 2011 (see L 2011, ch 62, § 49 [f]). Significantly, Executive Law § 259-c (4) requires that the Board “establish written procedures for its use in making parole decisions as required by law,” and the Board acknowledges  that the statute requires it to incorporate risk and needs principles into its decision-making process. According to the record, the Board was trained in the use of the COMPAS instrument prior to petitioner’s hearing. Moreover, the Board acknowledges that it has used the COMPAS instrument since February 2012 and will use it for petitioner’s next appearance. Under these circumstances, we find no justification for the Board’s failure to use the COMPAS instrument at petitioner’s October  2011  hearing. Matter of Garfield, 515986, 3rd Dept 7-3-13

 

Parole Board Could Require No-Contact-with-Wife for One Year as a Condition

In upholding the Board of Parole’s determination that, as a condition of release on parole, petitioner, who had attacked his wife in the past, must refrain from any contact with his wife for one year and complete a domestic violence offenders program, the Third Department wrote:

…[T]the Board is vested with discretion to determine the conditions upon which an inmate is released, and its decision in that regard is not subject to judicial review if made in accordance with the law (see Executive Law §§ 259-c [2]; 259-i [5];…). Petitioners argue that the conditions at issue are unlawful, arbitrary and capricious, in that they lack a sufficient factual basis in the record and improperly impair their fundamental right to maintain a marital relationship. We disagree. Parole conditions that  are  “rationally  related  to  the inmate’s criminal history, past conduct and  future chances of recidivism” are not arbitrary and capricious ….   Moreover, petitioner’s fundamental rights to associate and marry may be restricted by  parole  conditions  that  are  “reasonably  related  to legitimate  penological  interests” … .  George v NYS Department of Corrections …, 516126, 3rd Dept 6-27-13

 

Parole Violation Did Not Preclude Application for Resentencing Under the Drug Law Reform Act

The Fourth Department determined County Court erred when it denied defendant’s application for resentencing under the Drug Law Reform Act on the ground defendant was a reincarcerated parole violator.  Nor did it matter that defendant was released from parole supervision after he made the application.  People v Saffold, 666, 4th Dept, 6-7-13

 

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