Phillips v. Dennison

41 A.D.3d 17, 834 N.Y.S.2d 121
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 12, 2007
StatusPublished
Cited by6 cases

This text of 41 A.D.3d 17 (Phillips v. Dennison) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. Dennison, 41 A.D.3d 17, 834 N.Y.S.2d 121 (N.Y. Ct. App. 2007).

Opinion

OPINION OF THE COURT

Saxe, J.P.

This is a CPLR article 78 proceeding brought by petitioner William R. Phillips, a former New York City police officer who is currently serving a term of 25 years to life for his 1975 conviction of two counts of murder and a count of attempted murder. He contends that the denial of his fourth parole application by the New York State Parole Board constituted an abuse of its discretion, asserting that the parole denial was not properly supported by the legitimate considerations listed in Executive Law § 259-i, but was instead prompted solely by improper policy considerations which are not the proper province of the Board. However, in our view, notwithstanding the Board’s recognition that he has been an exemplary inmate who no longer poses a threat to society, other facts, properly considered as elements of the factors listed in the statute, support the Board’s denial of parole.

Facts

Petitioner was a New York City police officer from 1957 to 1974. In the early 1970s, he was apprehended for corrupt activities involving collection of protection money from a prostitution ring. He then agreed to cooperate with the Knapp Commission, [19]*19which was investigating widespread corruption in the NYPD, and he became a star witness against other cormpt police officers. As a result of his appearance before the Knapp Commission, which was televised, petitioner was identified as the perpetrator of a murder, and he was ultimately convicted of two counts of murder and one count of attempted murder arising out of a 1968 incident in which, on Christmas Eve, while trying to extort protection money, he shot and killed a man working as a pimp and bookmaker, and a 19-year-old prostitute who witnessed the murder, as well as wounding a third person who was at the scene. On January 28, 1975, petitioner was sentenced to 25 years to life and 20 years to life for the two murders and 8V3 to 25 years for the attempted murder, all sentences to run concurrently. He remains incarcerated to date.

The Parole Hearing

On September 14, 2005, petitioner appeared before the Board for his fourth parole hearing. At the time, he was 75 years old and had served 31 years in maximum security institutions.

When asked by the Board about the commission of his crimes, petitioner described the incident in such a way as to avoid direct acknowledgment that he precipitated the incident by his conduct in attempting to extort payment from his victim, and that in response to the victim’s noncooperation, he shot him in the head at short range and then shot the two other individuals. Petitioner’s description of the event was that, “an argument ensued . . . and everybody was drunk and yelling and shouting and all of a sudden . . . then the shooting erupted and I left the building.” It took a Commissioner’s blunt question, “Wait a minute. You pulled out a gun and you killed him, right?” for petitioner to answer “Yes.” When asked if he killed the girl because she witnessed the event, he said, “[w]ell, this was the circumstances of the event.” His explanation for the incident was that “I guess you’re in a state of, you know, this red thing comes over you,” which he attributed generally to “this conglomeration of everything [he] was going through” as a police officer.

Focusing on the subject of taking responsibility, petitioner began by saying “I have this remorse of what happened that I ruined my life, because of one incident.” When the Commissioner pointed out that, more importantly, he ruined other people’s lives too, not only the victims’ but their families’ as well, petitioner went on to express remorse “[f]or the victims and their families, and all of the people that I caused problems for.”

[20]*20In response to petitioner’s observation that there was no violence on his 31-year prison record, the Board’s Chairman candidly acknowledged petitioner’s stellar institutional record and important participation in many forms of community service while serving his sentence:

“You are what they call a model inmate. You have done numerous things in prison, which we will mention. It’s just that you killed two people, you tried to kill a third. And I know the Courts have commented on it and the Judge commented on it the last time about rehabilitation, and the fact that, you know, you are not a threat to society, that what else can someone else like you do, except just to do what you are doing. But the hard part for us, is that you’re responsible for two lives lost. And there aren’t too many more serious crimes in the State Prison system, especially from someone who had no prior criminal record, who was a police officer, who just, quite frankly, was a cold-blooded killer. I know that was many years ago, but that is the hard part for us. How many years is enough for taking two lives and trying to kill a third?”

However, these off-the-cuff remarks do not constitute the Board’s full analysis of the applicable statutory factors, although they are consistent with the written decision. The Board’s written denial of parole states:

“You were a New York City Police Officer and you brutally murdered your two victims and attempted to murder a third victim. You shot these victims at close range intending to kill them. We recognize the extremely lengthy time you’ve been imprisoned, your lengthy period of positive programming and your excellent disciplinary record. However, in view of your most heinous crimes (one of your murdered victims was a nineteen year old girl) this Panel feels that to release you at this time would deprecate the seriousness of your criminal acts and undermine respect for the law.”

The IAS court annulled the Board’s denial of parole, concluding that the Board failed to give fair consideration to the mandated statutory factors set out in Executive Law § 259-i (2) (c) (A) and that, despite the absence of aggravating factors, it improperly based its decision to deny parole on the seriousness [21]*21of the crime alone. In that regard, the court indicated that since almost all the statutory standards and factors weighed in petitioner’s favor, the denial of parole was necessarily based solely, and improperly, on the nature of the crime itself. The court went on to observe that the Board completely changed its rationale for denying petitioner parole from its rationale in his third application, namely, that petitioner was a danger to society. The IAS court reasoned that this change in rationales showed that the Board’s third denial of parole was pretextual, and that its present determination was similarly based on an improper predisposition to deny parole rather than a fair consideration of the statutory factors.

For the reasons that follow, we reverse and reinstate the Board’s determination.

Discussion

In order to set aside a determination of the Parole Board, the petitioner bears the heavy burden of establishing that the determination was the result of “ ‘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]). We conclude that the challenged determination was rationally based upon appropriate considerations following a weighing of all applicable statutory standards and factors.

Analysis begins with the language of Executive Law § 259-i (2) (c) (A):

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Cite This Page — Counsel Stack

Bluebook (online)
41 A.D.3d 17, 834 N.Y.S.2d 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-dennison-nyappdiv-2007.