Hamm v. Regan

43 A.D.2d 344, 351 N.Y.S.2d 742, 1974 N.Y. App. Div. LEXIS 5834

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1974
• Status: Published

Opinions

Greenblott, J.

This is an appeal from so much of a judgment of the Supreme Court at Special Term, entered August 1, 1973 in Albany County, in a proceeding commenced pursuant to CPLR article 78, which ordered that the Board of Parole of the State of New York “shall make a written decision setting forth its reasons for the revocation of petitioner’s parole and the facts upon which its determination to revoke said parole is based”.

Petitioner, an. inmate of the Auburn Correctional Facility, was resentenced on May 11, 1971, for the crimes of manslaughter, first degree (10 to 20 years), attempted murder, first degree (5 to 15 years), these terms to be served consecutively, and attempted robbery, first degree (5 to 15 years), this last sentence to run concurrently with, the sentence for attempted murder, first degree. Since petitioner was initially convicted and imprisoned in 1965, he became eligible for parole in late 1972.

On November 7, 1972, petitioner appeared before a three-member panel of the Parole Board, which unanimously agreed-to grant petitioner a parole to begin -on a release date of December 14, 1972, pending approval of a program which he had set up for his release.

On November 27, 1972, the entire 10-member Board of Parole met and reversed the earlier determination of the three-member panel. Whether this action by the full board, was a “reconsideration” of a previous decision or a “revocation” of petitioner’s parole is one of the questions -raised on this appeal, but, in any event, petitioner was denied parole for at least another 18 months. At a'hearing held , on-January 16, 1973, petitioner was given the following explanation of the board’s action: “ Hamm, we talked some time ago, since that time the decision which was rendered then and the oné subsequent to that Was reconsidered by the full board and reversed. The board then directed that you should have an opportunity to reappear and that we at this time communicate to you the' reason which was felt controlling by us when we considered your case. One thing that the 'Statute says to us- is we must consider the community into which the guy has been paroled and, the prevailing attitude there into-which he will go. It was felt by the parole board that it would be a negative community reaction to your release and that was the reason for the change in the decision. It was believed that it would be better for us to come to you and say that to you face to face so you will have an -opportunity to respond to and tfyats what I have done.”

On March 14, 1973, petitioner commenced this proceeding to annul the determination of the Board of Parole which denied his parole, to direct petitioner’s release on parole, and to direct the board to divulge the reasons for its determination. Special Term granted the request for a statement of reasons, while denying the' petition insofar as it sought to annul the board’s determination or secure petitioner’s release on parole. It is from this decision that the Board of Parole appeals, arguing that the petitioner is entitled to no further explanation of the reasons for the denial- of his parole.

We begin with the proposition that, in rendering an initial decision, the Board of Parole was under no statutory duty to' give a prisoner any explanation for its action. Section 213 of the Correction Law provides that discretionary release on parole shall be granted “ only if the board of parole is of the i pinion that there is reasonable probability that, if such prisoner is .released, he will live and remain, at liberty without violating the law, and that his release is not incompatible with the welfare of .society.” Nowhere in section 214 of the Correction Law (“ Method of release ”) is the board required to find facts or state reasons for its conclusions.; the board is only required to examine the prisoner, inquire into his background, and then ‘ ‘ reach its own conclusions as to the desirability of releasing such prisoner on parole.” (Correction Law, § 214, subd. 4.) Once these steps are taken “ any action taken by the board pursuant to this article shall be deemed a judicial function and shall not be reviewable if done in accordance with law.” (Correction Law, § 212, subd. 10.) Thus, at least as regards an initial decision whether to grant or deny parole, “ 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 Board of Parole, 293 N. Y. 254, 257). We recognize, nevertheless, that “ law ” goes beyond the procedural steps prescribed in the statutes, and that the standards by which the board considers prisoner eligibility for parole must be subject to some measure of judicial scrutiny.

* In United States ‘ex rel. Johnson v. Chairman, New York State Bd. of Parole. (363 F. Supp. 416), the United States District Court felt that this scrutiny could not be operative unless a prisoner was informed of the ultimate reason for a denial of parole, and therefore concluded that a statement of the ground of-decision would have to be provided. On the- facts of this case, it is not necessary for us to determine whether Johnson {supra) stands for the proposition that, under New York law and/or the due process clause of the United States Constitution, any prisoner who is denied parole is entitled to a statement of reasons therefor. The.case before us is more like that which was presented to the. Supreme Court of California in Matter of Prewitt (8 Cal. 3d 470) where a decision granting parole was rescinded prior to the release date for unstated reasons. Although we are not in full agreement with that court’s conclusion that an inmate whose unexecuted release on parole is rescinded is entitled to all the protections of Morrissey v. Brewer (408 U. S. 471), we do feel there is merit to the observation that the right to achieve liberty after a grant of parole but before release is much closer in nature to the loss of actual liberty after .release than is the mere hope that a favorable decision granting release will be made in the first instance (see Matter, of Prewitt, supra, p. 474).

Here, however, the Board of Parole did state its reason— the negative community reaction which was anticipated. Since respondent has not appealed from so much of the decision at Special Term denying any form of relief other than the right to a .statement of reasons, no purpose could be served by determining whether this reason as given was adequate. Therefore, the petition as presently before us is moot and should be dismissed.

The judgment should be reversed, on the law -and the facts, and the petition dismissed, without costs.

We agree with Special Term that the due process requirements established in Morrissey v. Brewer (408 U. S. 471) for parole revocations are not applicable where a prisoner has not been released and .thus does not face the loss of actual liberty which was so crucial to the Morrissey decision,