Solari v. Vincent

46 A.D.2d 453, 363 N.Y.S.2d 332, 1975 N.Y. App. Div. LEXIS 8515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 20, 1975
• Status: Published

Opinions

Mabtttsgello, J.

This is an appeal from a judgment of the Supreme Court, Dutchess County, which, in a proceeding pursuant to article 78 of the CPLE, directed that the petitioner be afforded a new parole release hearing, with an interpreter, and that the petitioner be furnished with written reasons for the ensuing grant or denial of release on parole. The judgment should be affirmed, without costs.

Pursuant to the dictates of article 8 of the Correction Law, the Board of Parole of the State of New York has been invested with broad discretion in the area of parole release, and it has long been recognized that, in exercising this discretion, the board’s determination whether to grant or deny parole “ shall be deemed a judicial function and shall not be reviewable if done in accordance with law” (Correction Law, § 212, subd. 10; People v. Fink, 29 N Y 2d 443; Matter of Hines v. State Bd. of Parole, 293 N. Y. 254; People ex rel. Schuster v. Vincent, 42 A D 2d 596). Thus, this court has recently held that so long as the board ‘ ‘ does not run afoul of statutory mandates or violate procedural due process, its determinations should remain free from judicial review” (Matter of Paulsen v. New York State Bd. of Parole, 46 A D 2d 661, 662; see People ex rel. McNair v. West, 77 Misc 2d 150, 152). Where, however, as here, the allegation is that procedural due process has been violated, it is manifest that an article 78 proceeding will lie (see Matter of Paulsen v. New York State Bd. of Parole, supra).

Turning to the merits of the petitioner’s claim, it is apparent that an inmate possesses no accrual “right” to parole. He does, however, possess an earned “ right ” to parole release where, in accordance with statute, the board is satisfied that there exists reasonable probability that, if released, he will live and remain at liberty without violating the law, that his release will not be incompatible with the welfare of society and that, upon release, he will become employed in self-sustaining work (Correction Law, §§ 213, 214). Such a. statute automatically invests each prisoner with another and further right to equal treatment with all those similarly situated (Matter of Cummings v. Regan, 76 Misc 2d 137, 141, affd. 45 A D 2d 222; United States ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, 363 F. Supp. 416,417, affd. 500 F. 2d 925).

The interest at stake here, freedom from imprisonment, is fundamental to our jurisprudence, differing in “ degree ”, but not ‘ ‘ kind ’ ’, from that found constitutionally protected in Morrissey v. Brewer (408 IT. S. 471; see Childs v. United States Bd. of Parole, 371 F. Supp. 1246, 1247; United States ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, supra, p. 419). Moreover, it is manifest that ‘ ‘ grievous loss ’ ’ will be suffered if it be arbitrarily denied (see Morrissey v. Brewer, supra, p. 481). In light of the foregoing, the teaching of Morrissey is that at least minimal due process is required (Morrissey v. Brewer, supra, p. 481) and, under the realities of our present statutory scheme, this translates into 1 ‘ relief against demonstrable discrimination, or abuses of discretion, or the introduction into parole decision-making of illicit considerations ” (United States ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, supra, p. 418). Effective judicial review of this caliber cannot be had without a statement of reasons relied on in denying parole, for only in this way can the courts be satisfied that the determination is not without foundation in fact, discriminatory, or infected by reference to impermissible factors (United ‘States ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, supra,, p. 418; see Matter of Cummings v. Regan, 45 A D 2d 222, 226, supra).

No interference with the board’s discretion is hereby intended or accomplished. We require merely that the board state, however briefly, the ultimate grounds relied on with sufficient particularity to enable a reviewing court to determine whether inadmissible factors have influenced the decision and whether discretion has been abused (United States ex rel. Johnson v. Chairman, N. Y. State Bd. of Parole, supra, p. 419; see Matter of Cummings v. Regan, 45 A D 2d 222, supra).