                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 24, 2014                     518301
________________________________

In the Matter of SAMUEL
   HAMILTON,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF
   PAROLE et al.,
                    Respondents.
________________________________


Calendar Date:   June 3, 2014

Before:   Peters, P.J., Garry, Rose, Egan Jr. and Clark, JJ.

                             __________


      Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York
City (Christopher L. Filburn of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondents.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Devine, J.),
entered November 14, 2013 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of the Board of Parole
denying petitioner's request for parole release.

      Petitioner has served approximately 30 years on an
aggregate sentence of 18 years to life in prison for his
conviction of murder in the second degree and robbery in the
first degree. The convictions stemmed from a February 1982
incident in which an off-duty police officer was killed by
petitioner's accomplice during an attempted robbery. Petitioner
                              -2-                518301

made his latest of numerous appearances before the Board of
Parole in August 2012, and his request for release was denied.
He was ordered to be held an additional 24 months. After the
Division of Parole failed to timely respond to his administrative
appeal, petitioner commenced this CPLR article 78 proceeding.
Supreme Court dismissed the petition, and petitioner now appeals.

      We affirm. The procedures governing parole are set forth
in Executive Law article 12-B. Executive Law § 259-i (5)
dictates the scope of our review, providing that "[a]ny action by
the [B]oard or by a hearing officer pursuant to this article
shall be deemed a judicial function and shall not be reviewable
if done in accordance with law." The Court of Appeals has long
interpreted that language – in both current and prior statutes –
to mean that "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 Bd. of Parole, 293 NY 254, 257
[1944]; see Matter of Silmon v Travis, 95 NY2d 470, 476-478
[2000]). In New York, it is "the . . . Board [that] holds the
power to decide whether to release a sentenced prisoner on
parole" (Matter of Silmon v Travis, 95 NY2d at 476). As the
Court of Appeals has explained, "[t]o require the [Board] to act
in accordance with judicial expectations . . . would
substantially undermine the [legislative] decision to entrust
release determinations to the [Board] and not the courts" (Matter
of Russo v New York State Bd. of Parole, 50 NY2d 69, 76-77 [1980]
[internal quotation marks omitted]). Absent failure by the Board
to comply with the mandates of Executive Law article 12-B,
"[j]udicial intervention is warranted only when there is a
'showing of irrationality bordering on impropriety'" (Matter of
Silmon v Travis, 95 NY2d at 476, quoting Matter of Russo v New
York State Bd. of Parole, 50 NY2d at 77; see Matter of Valderrama
v Travis, 19 AD3d 904, 905 [2005]). Thus, as the Court of
Appeals further stated in Silmon, "we review whether the Board's
decision to deny parole was arbitrary or capricious" (Matter of
Silmon v Travis, 95 NY2d at 476).1


    1
        In all CPLR article 78 proceedings to review
determinations that are not made after a quasi-judicial hearing
mandated by law, including this one, "the proper standard for
                              -3-                518301

      Executive Law article 12-B mandates that "[d]iscretionary
release on parole shall not be granted merely as a reward for
good conduct" (Executive Law § 259-i [2] [c] [A]). Rather, the
Board must consider whether "there is a reasonable probability
that, if such inmate is released, he [or she] will live and
remain at liberty without violating the law, and that his [or
her] release is not incompatible with the welfare of society and
will not so deprecate the seriousness of his [or her] crime as to
undermine respect for law" (Executive Law § 259-i [2] [c] [A]).
The decision to grant parole release is discretionary, but the
Board is required to consider certain guidelines in making its
determination (see Matter of Silmon v Travis, 95 NY2d at 477).
Those guidelines include the inmate's institutional record (goals
and accomplishments, academic achievement, vocational education,
training and work assignments, therapy and interaction with
staff), release plans, statements by the crime victim, the
seriousness of the offense considering type and length of


judicial review . . . is whether the Board's determination was
arbitrary and capricious or an abuse of discretion (see CPLR 7803
[3])" (Matter of Beck-Nichols v Bianco, 20 NY3d 540, 559 [2013];
see Matter of Pell v Board of Educ. of Union Free School Dist.
No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34
NY2d 222, 231 [1974]). "Arbitrary action is without sound basis
in reason and is generally taken without regard to the facts";
or, put differently, "[r]ationality is what is reviewed under
. . . the arbitrary and capricious standard" (Matter of Pell v
Board of Educ. of Union Free School Dist. No. 1 of Towns of
Scarsdale & Mamaroneck, Westchester County, 34 NY2d at 231
[emphasis added]). Contrary to the dissenters' views, our
application of the arbitrary and capricious – that is,
rationality – standard of judicial review amounts to neither an
"assert[ion] that this clearly extraordinary case is not
susceptible to reversal upon judicial review" (infra at 18
[Garry, J., dissenting]) or "simply ratifying decisions made by
the Board so long as it adheres to the statutory mandates" (infra
at 14 [Peters, P.J., dissenting]). Rather, in our view, the
Board's determination evinces a clearly reasoned basis that finds
foundation in the facts of this matter and, therefore, is not
irrational bordering on impropriety, as explained below.
                              -4-                518301

sentence, recommendations of the sentencing court and district
attorney, the presentence probation report, mitigating or
aggravating factors to the crime, activities following arrest
prior to confinement, and prior criminal record (Executive Law
§ 259-i [2] [c] [A] [i], [iii], [v], [vii], [viii]).

      While the Board is required to detail the reasons for a
denial of discretionary release (see Executive Law § 259-i [2]
[a] [i]), the Court of Appeals has ruled that the "Board need not
expressly discuss each of these guidelines in its determination"
(Matter of King v New York State Div. of Parole, 83 NY2d 788, 791
[1994]), and we are bound by that ruling. The Court of Appeals
has also explained that "the statutory scheme is such that no
judicial review of the merits in any case is possible" (Matter of
Hines v State Bd. of Parole, 293 NY at 257 [emphasis added]).2
These principles, which are derived from the statute itself,
underlie our limited and deferential review of the Board's
decisions. Consistent with them, we have ruled that "our role is
not to assess whether the Board gave the proper weight to the
relevant factors" in reviewing the Board's determination that the
violent nature of the crimes for which petitioner was convicted
outweighed his exemplary institutional behavior and extensive
evidence of rehabilitation (Matter of Comfort v New York State
Div. of Parole, 68 AD3d 1295, 1296 [2009]). In that case, we
explained that, although we review the Board's ultimate
determination on a standard of "irrationality bordering on
impropriety" (Matter of Comfort v New York State Div. of Parole,
68 AD3d at 1297 [internal quotation marks and citations
omitted]), we cannot "effectively review the Board's weighing
process, given that it is not required to state each factor that
it considers, weigh each factor equally or grant parole as a


    2
        Again, our acknowledgment that this case is not subject
to review on the merits does not imply that we are "abdicat[ing]
our critical judicial function" (infra at 18 [Garry, J.,
dissenting]). Rather, it is a recognition of the distinction
between de novo review on the merits, and the "extremely
deferential[, . . .] proper standard for judicial review in these
cases" – whether the Board's determination was arbitrary and
capricious (Matter of Beck-Nichols v Bianco, 20 NY3d at 559).
                              -5-                518301

reward for exemplary institutional behavior" (id. at 1296
[emphasis added]).

      In that regard, the Court of Appeals has held that the
Board rationally denied parole release to a petitioner – who "was
a productive citizen and model prisoner [and] who
enthusiastically engaged in educational and vocational programs,
taught other prisoners and wrote about prison life" – based upon
the brutality of his crime and his continuing to maintain his
innocence of that crime (Matter of Silmon v Travis, 95 NY2d at
477). Similarly, this Court has repeatedly held – both recently
and historically – that, so long as the Board considers the
factors enumerated in the statute, it is "entitled . . . to place
a greater emphasis on the gravity of [the] crime" (Matter of
Montane v Evans, 116 AD3d 197, 203 [2014], lv granted 23 NY3d 903
[2014] [internal quotation marks and citation omitted]; see
Matter of Williams v New York State Div. of Parole, 114 AD3d 992,
992-993 [2014]; Matter of Lashway v Evans, 110 AD3d 1417, 1418
[2013]; Matter of McCaskell v Evans, 108 AD3d 926, 927 [2013];
Matter of Viglotti v State of N.Y. Exec. Div. of Parole, 98 AD3d
789, 790 [2012], lv dismissed 20 NY3d 1034 [2013]; Matter of
Gonzalez v Chair, N.Y. State Bd. of Parole, 72 AD3d 1368, 1369
[2010]; Matter of Lue-Shing v Pataki, 301 AD2d 827, 828 [2003],
lv denied 99 NY2d 511 [2003]; People ex rel. McCormack v New York
State Bd. of Parole, 244 AD2d 673, 673 [1997]; Matter of Walker v
New York State Div. of Parole, 203 AD2d 757, 758-759 [1994];
Matter of Ittig v New York State Bd. of Parole, 59 AD2d 972
[1977], lv denied 43 NY2d 648 [1978]; but see Matter of King v
New York State Div. of Parole, 190 AD2d 423, 434 [1993], affd on
other grounds 83 NY2d 788 [1994] [a First Department case
holding, in conflict with our precedent, that the Board may not
deny discretionary release based solely on the nature of the
crime when the remaining statutory factors are considered only to
be dismissed as not outweighing the seriousness of the crime]).


      Particularly relevant here, we have held that, even when a
petitioner's institutional behavior and accomplishments are
"exemplary," the Board may place "particular emphasis" on the
violent nature or gravity of the crime in denying parole, as long
as the relevant statutory factors are considered (Matter of
                              -6-                518301

Valderrama v Travis, 19 AD3d at 905). In so holding, we
explained that, despite petitioner's admirable educational and
vocational accomplishments and positive prison disciplinary
history, "[o]ur settled jurisprudence is that a parole
determination made in accordance with the requirements of the
statutory guidelines is not subject to further judicial review
unless it is affected by irrationality bordering on impropriety"
(id. [internal quotation marks and citations omitted]). We
emphasize that this Court has repeatedly reached the same result,
on the same basis, when reviewing denials of parole to
petitioners whom we recognized as having exemplary records and as
being compelling candidates for release (see Matter of Comfort v
New York State Div. of Parole, 68 AD3d at 1296-1297; Matter of
Cruz v New York State Div. of Parole, 39 AD3d 1060, 1061-1062
[2007]; Matter of Guerin v New York State Div. of Parole, 276
AD2d 899, 900 [2000]; see also Matter of Garofolo v Dennison, 53
AD3d 734, 734-735 [2008]; Matter of Montalvo v New York State Bd.
of Parole, 50 AD3d 1438, 1438-1439 [2008]; Matter of Sanchez v
Dennison, 21 AD3d 1249, 1249-1250 [2005]; Matter of Mandala v
Dennison, 20 AD3d 757, 757-758 [2005], lv denied 5 NY3d 714
[2005]; Matter of Rivera v Travis, 289 AD2d 829, 830 [2001]).

      Evaluating the Board's written determination here in the
context of the parole hearing transcript (see Matter of Siao-Pao
v Dennison, 11 NY3d 777, 778 [2008]; Matter of Montane v Evans,
116 AD3d at 203 n 2), we conclude that the Board properly
considered the necessary factors in denying petitioner's request
for parole release and founded its determination upon the facts
of this particular case. Indeed, the record is replete with
evidence that the Board reviewed, considered and discussed the
relevant factors, as well as the facts of the underlying crime.
Specifically, the Board explored in detail petitioner's
rehabilitative efforts, educational and institutional
achievements, release plans, COMPAS Risk and Needs Assessment
instrument, lack of criminal history, evident remorse and
insight, numerous letters of support, clean disciplinary record
and the sentencing minutes, in addition to the seriousness of the
crime and his initial failure to cooperate with law enforcement
agents, which allowed his accomplices to escape conviction. With
respect to the seriousness of the crime, it is worth noting that
– as the Board recognized – petitioner was convicted of murder
                              -7-                518301

under the felony murder statute, under which, "[b]y operation of
law, the intent necessary to sustain a murder conviction is
inferred from the intent to commit a specific, serious, felonious
act, even though the defendant, in truth, may not have intended
to kill" (People v Stokes, 88 NY2d 618, 623 [1996]; see People v
Cahill, 2 NY3d 14, 67 [2003]). Thus, while the facts as set
forth in the record strongly support petitioner's claim that he
did not shoot the victim or intend to murder him, "in the eyes of
the law, [he] brutally killed [a police officer]" (Matter of
Silmon v Travis, 95 NY2d at 477-478).

      In our view, the Board neither failed to comply with the
requirements of the statutory guidelines nor engaged in
irrationality bordering on impropriety. This is not a case in
which, for example, the Board irrationally concluded – in glaring
contradiction with both the facts in the record and the normal
limits of human capability, and without a sound basis in reason –
that a nearly 90-year-old, terminally ill cancer patient with
additional debilitating medical conditions that required
continuous medical care had "a propensity for extreme violence"
based solely on the nature of the crime (Matter of Friedgood v
New York State Bd. of Parole, 22 AD3d 950, 951 [2005]). Nor is
this a case in which the Board "considered factors outside the
scope of the applicable statute," such as penal philosophy and
the historical treatment of murderers (Matter of King v New York
State Div. of Parole, 83 NY2d at 791) or in which the hearing
transcript suggests that the Board improperly imposed a "burden
[on petitioner] to demonstrate that his release would somehow
enhance society" (Matter of Prout v Dennison, 26 AD3d 540, 541
[2006]). Rather, the record establishes that the Board
acknowledged petitioner's extensive rehabilitative success along
with the additional statutory factors, but placed greater
emphasis on the seriousness of petitioner's crime in its
determination that release would be incompatible with the welfare
of society and so deprecate the seriousness of the crime as to
undermine respect for the law, as it is "entitled" to do (Matter
of Montane v Evans, 116 AD3d at 203). We are thus constrained to
affirm – to do otherwise is to implicitly overrule the decades of
our well-settled jurisprudence set forth above (see e.g. Matter
of Comfort v New York State Div. of Parole, 68 AD3d at 1296-1297;
Matter of Cruz v New York State Div. of Parole, 39 AD3d at 1061-
                              -8-                518301

1062; Matter of Valderrama v Travis, 19 AD3d at 905; Matter of
Guerin v New York State Div. of Parole, 276 AD2d at 900).

      That said, this Court is persuaded that petitioner's
achievements during his incarceration have been extraordinary.
Petitioner has, among other things, earned a Bachelor's degree
from Nyack College and a Master's degree from New York
Theological Seminary, participated in myriad programs through the
prison system, and acted as a teacher and mentor to dozens of
current and former inmates. Most notable are the numerous
letters that petitioner submitted advocating for his release,
including letters from the former Commissioner of Corrections and
Community Supervision, the former Chair of the Division of
Parole, and the Assistant District Attorney who prosecuted
petitioner. In addition, the Superintendent of Fishkill
Correctional Facility opined that he "would be fine having
[petitioner] and his family as [his] neighbors," and 18
correction officers and other correction employees submitted
letters further supporting petitioner's release. As one Board
commissioner acknowledged – before voting against petitioner's
release in a split decision – "anyone would be hard pressed to
argue that [petitioner was not] rehabilitated."3


    3
        We interpret the same commissioner's frank acknowledgment
that if petitioner was denied release, "the reason [he] would be
held is because a police officer was murdered in the line of
duty," as a recognition that petitioner would be released unless
the Board determined that the seriousness of the crime outweighed
the remaining statutory factors. Similarly, that commissioner's
explanation that he found petitioner's description of the crime
"difficult . . . to fathom" based upon his own experience does
not amount to a misunderstanding of the facts of the crime or
consideration of improper factors, as the dissenters assert.
That commissioner's discussion of the facts of the crime as set
forth in the record was accurate, and he conceded that "maybe
[petitioner was] telling the truth," but nevertheless expressed
his doubts about petitioner's "credibility," given that
petitioner "could have resolved all of this" at the time of the
incident, but instead "engaged in a pattern of lies from the
outset about what happened." A petitioner's willingness to admit
                              -9-                518301

      Nevertheless, our view on whether petitioner is a "prime
candidate for parole release" is not the relevant question before
us (Matter of Cruz v New York State Div. of Parole, 39 AD3d at
1062). Petitioner's record, while compelling, provides no basis
for overturning our settled precedent and for failing to apply
the relevant decisions of the Court of Appeals; nor do the 2011
amendments to Executive Law article 12-B. As this Court has
already concluded, those amendments did not "transform[] or
otherwise alter[] the obligations of either the Board in
articulating its determinations or this Court in reviewing such
determinations" (Matter of Montane v Evans, 116 AD3d at 203-204 n
2). In short, the statutory language of Executive Law § 259-i
(5) dictating our limited power of review and the interpretation
of that language by the Court of Appeals remain unchanged.
Accordingly, inasmuch as the Board has not violated the statutory
mandates and its determination does not exhibit irrationality
bordering on impropriety under either our precedent or that of
the Court of Appeals, "its discretion is absolute and beyond
review in the courts" (Matter of Hines v State Bd. of Parole, 293
NY at 257; see Matter of Silmon v Travis, 95 NY2d at 476-477).

      Finally, we have previously considered and rejected
petitioner's arguments that the 2011 amendments to Executive Law
§ 259-c (4) required the promulgation of formal rules or
regulations (Matter of Montane v Evans, 116 AD3d at 202-203).
Petitioner's remaining contentions have been either rendered
academic by our decision or, upon consideration, found to be
lacking in merit.

     Rose, J., concurs.




to the facts of the crime and a consideration of the petitioner's
activities following arrest and prior to confinement – here, the
"pattern of lies" and petitioner's refusal to cooperate with law
enforcement – are factors within the scope of the statute (see
Executive Law § 259-i [2] [c] [A] [vii]; Matter of Silmon v
Travis, 95 NY2d at 477-478).
                              -10-               518301

Egan Jr., J. (concurring).

      On February 11, 1982, James Carragher, an off-duty police
officer, was walking home from work when he was accosted, robbed
and murdered on a street in Brooklyn. Upon reviewing the
extensive record before this Court, I fully agree with the
majority that the determination rendered by the Board of Parole
in this matter was neither arbitrary and capricious nor
constituted an abuse of discretion, and I am similarly satisfied
that, contrary to the view expressed by my dissenting colleagues,
the Board's decision was not premised upon a misunderstanding of
the relevant facts or the consideration of improper factors.
Indeed, my analysis of the record leads me to conclude that the
Board's decision to deny parole to petitioner under the
circumstances presented here was entirely proper, and I write
separately only to comment briefly upon the impact of
petitioner's institutional record and the seriousness of the
underlying offense.

      As the majority aptly observes, parole is not a reward for
good behavior in prison (see Executive Law § 259-i [2] [c] [A];
Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]; Matter of
Robles v Fischer, 117 AD3d 1558, 1559 [2014]; Matter of Mentor v
New York State Div. of Parole, 87 AD3d 1245, 1246 [2011], lv
denied 18 NY3d 803 [2012], cert denied ___ US ___, 132 S Ct 2437
[2012]), and although petitioner has made significant strides
while incarcerated, his institutional record in no way alters the
fact that he stands convicted of society's most heinous crime –
the taking of a fellow human being's life. Similarly, the mere
fact that certain of the statutory factors and guidelines (see
Executive Law § 259-i [2] [c] [A] [i], [iii], [vii], [viii])
militate in petitioner's favor or that petitioner scored well on
the COMPAS Risk and Needs Assessment instrument neither
undermines nor negates the seriousness of his offense. In this
regard, the prevailing case law – as extensively summarized by
the majority – makes clear that, so long as the Board considers
the relevant statutory factors, it is free to place "particular
emphasis" on the gravity of the underlying crime (Matter of
Valderrama v Travis, 19 AD3d 904, 905 [2005]). As I am satisfied
that the Board indeed gave appropriate consideration to all of
the relevant statutory factors and, further, did not abuse its
                              -11-               518301

discretion in emphasizing the nature of petitioner's crime in
denying his request for parole, I discern no basis upon which to
disturb the Board's determination.


Peters, P.J. (dissenting).

      Over 30 years ago, petitioner was sentenced to 18 years to
life in prison for his role in the crimes that led to the death
of an off-duty police officer. He remains behind bars, having
been denied parole seven times during that period, the most
recent of which – decided by a two-to-one vote of the Board of
Parole – is now before us. The majority has concluded that the
Board's decision to deny parole to petitioner during this latest
appearance did not exhibit "'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]). I respectfully disagree.

      In my view, the Board's decision was based upon significant
errors of fact and the consideration of improper factors. As the
parole hearing minutes reveal, the Board's decision was made by
the closest of margins (two commissioners voted to deny parole
and one dissented), such that any error should be considered
relevant to the determination. In that regard, one of the
commissioners who voted against petitioner's release acknowledged
that "anyone would be hard pressed to argue that [petitioner is]
not . . . rehabilitated," but professed his belief that
petitioner's achievements were contrasted by his "conduct in
shooting this officer." This commissioner further articulated
his belief that petitioner might have been the one to pull the
trigger by opining that it was "difficult for [him] to fathom how
if the man with the gun is the one who's right on top of this
officer stealing his property, how [petitioner got] shot and
[petitioner's coconspirator did not] get shot." Yet, petitioner
was not the shooter. In fact, he was not even armed. The
Assistant District Attorney who prosecuted petitioner wrote a
letter in support of petitioner's release in 2010, stating "with
certainty that before the case went to the jury, I was convinced
that [petitioner] was not the shooter. I am also certain that
[Supreme Court] was convinced that he was not the shooter." In a
                              -12-               518301

subsequent letter written in support of the instant parole
application, he wrote that "there was not a scintilla of evidence
that [petitioner] was the shooter" and that "no one involved in
the investigation ever believed that [petitioner] was the shooter
or that he was armed." Indeed, during sentencing, Supreme Court
stated that "[petitioner] stands before me having been found by
the jury to have been a participant, but not the active prime
mover. It is on that basis that he must be sentenced."
Petitioner, who had no prior criminal record and could have
received consecutive sentences amounting to an aggregate prison
sentence of 37½ years to life, was sentenced to less than half of
that.

      This same commissioner also relied on his own subjective
beliefs and experiences to interpret the facts in a manner
contrary to the record by suggesting that petitioner was aware at
the time of the incident that the victim was a police officer.
Petitioner steadfastly maintained that he was unaware of such
fact at any time during the course of events, and the record
supports his assertion. Supreme Court described the victim as "a
55-year-old man . . . carrying a black gym bag[,] wearing a cap,
corduroy pants and a coat," and the prosecuting attorney wrote
that the victim was "dressed in clothes that suggested he was a
middle-aged manual laborer." Yet this commissioner opined that,
based upon his own training in the police academy, "when you're
pulling out your gun, the first words that are supposed to
simultaneously come off your lips is 'police.'" The emphasis
that this commissioner placed on his belief that the victim must
have identified himself as a police officer can only be viewed as
relevant if it was also his belief that petitioner was the
shooter; indeed, he stated that in his 20 years of experience in
the system, "every single person who is charged with shooting an
officer says [the victim] didn't say who he was."

      Also troubling are repeated comments made by this same
commissioner indicating that, because petitioner initially failed
to cooperate with police in 1982 and neither of his two
coconspirators were ever charged for their role in the offenses,
petitioner put himself in the "precarious position" of being the
only person who could be held accountable for the crimes. This
commissioner implied that someone must continue to be punished
                              -13-               518301

for the unfortunate death of this police officer and, absent the
ability to punish the most culpable party, petitioner must
continue to pay that price in his stead. Manifestly, such
punitive considerations find no support in statute (see Executive
Law § 259-i) and have absolutely no relevance to the decision to
grant or deny parole.1 As the Board's determination was tainted
by these factual errors and improper considerations, it must be
annulled (see Matter of King v New York State Div. of Parole, 83
NY2d 788, 791 [1994]; Matter of Prout v Dennison, 26 AD3d 540,
541 [2006]; Matter of Friedgood v New York State Bd. of Parole,
22 AD3d 950, 951 [2005]).

      Even had such blatant factual errors and inappropriate
considerations not affected the outcome, I would still find the
Board's decision to be irrational. To be sure, pursuant to the
governing statute and early Court of Appeals precedent governing
the review of parole decisions, the courts' role appeared to be
limited to discerning errors of fact or law (see Executive Law §


    1
        To be clear, by no means am I suggesting that the
consideration of petitioner's conduct after arrest and prior to
confinement are irrelevant; rather, I am asserting only that it
was improper for the Board to attribute relevance to the fact
that petitioner was the only culprit who could continue to be
held accountable for the crime. In any event, the commissioner's
statement that it was petitioner's "pattern of lies" and deceit
that allowed the other perpetrators to escape prosecution, and
which left petitioner in the "precarious position" of being the
only one that could be held accountable for the crime, is
contrary to the facts. The Assistant District Attorney who
prosecuted petitioner unequivocally stated in his letter in
support of petitioner's release application that the police were
already aware of the other perpetrators' involvement in the
crime, and that there was no other information petitioner could
have provided that would have aided in the investigation and
prosecution of those other individuals. In fact, noticeably
absent from the record is any explanation as to why the other
perpetrators were not prosecuted. Certainly, petitioner should
not be penalized for law enforcement activities and/or decisions
over which he had no control.
                              -14-                518301

259-i [5]; Matter of Hines v State Bd. of Parole, 293 NY 254, 257
[1944]). However, more recent Court of Appeals jurisprudence,
now well settled, propounds a more discerning standard under
which such decisions should be reviewed for "irrationality
bordering on impropriety" (Matter of Silmon v Travis, 95 NY2d at
476 [internal quotation marks and citation omitted]; see Matter
of Partee v Evans, 117 AD3d 1258, 1259 [2014]). In my view, this
language suggests that – more than simply ratifying a decision
made by the Board so long as it adheres to the statutory mandates
– the role of the courts is to make some measure of substantive
evaluation to assure that justice is served. As the Court of
Appeals taught in Silmon, "we review whether the Board's decision
to deny parole was arbitrary or capricious" (Matter of Silmon v
Travis, 95 NY2d at 476).2

      Applying this standard, I fully acknowledge that parole
release is not granted merely as a reward for good conduct, and
that the decision to grant or deny parole rests primarily within
the discretion of the Board. I am also well aware that the
showing required to set aside a parole decision is, indeed, a
weighty one.3 However, given the lack of any evidence to support
the Board's finding that there is a reasonable probability that
petitioner would commit further crimes if released, and that his
release would be incompatible with the welfare of society and
undermine respect for the law, I find the Board's determination
to be patently irrational.

      The majority rightly notes that petitioner's achievements
while incarcerated are truly remarkable and extraordinary, but in
light of the task at hand, those accomplishments are worthy of
iteration. Petitioner, who entered prison at the age of 20 with


     2
        I am not challenging the rationality standard governing
our review of parole decisions, as the majority suggests.
Rather, I take issue with the majority's application of that
standard to the facts of this case.
     3
        Such awareness is evinced by this dissent – the first
dissent that I have penned from a decision of the Board in my
over two decades on this Court.
                              -15-               518301

a high school diploma, has since earned both a Bachelor's degree
in organizational management and leadership skills and a Master's
degree in professional studies. Over the three decades of his
incarceration, petitioner has assumed the role of adjunct
instructor and academic assistant through Nyack College and the
New York Theological Seminary, and has also become the
facilitator or coordinator for at least eight distinct programs
within his current and former correctional facilities.
Throughout his incarceration, petitioner has successfully
participated in nearly every rehabilitative program available to
him, including several years of therapeutic counseling focused in
part on taking responsibility for his crime, services to prepare
him for his transition out of prison and programs addressing,
among other areas, marriage, parenting and alternatives to
violence. Through these efforts, petitioner has fully accepted
responsibility for his actions and has repeatedly expressed
sincere remorse for all of those affected by his crime,
particularly the family of the victim. In a personal statement
in his application for release to community supervision,
petitioner stated that "[s]ince the pain I have caused . . .
remains in my heart, my life and actions will always demonstrate
atonement." A practitioner who worked with petitioner stated
that he "exemplifies the transformation toward responsibility,
remorse, and making amends that we seek to achieve with all of
our participants."

      In addition, petitioner has not only maintained employment
during his incarceration, serving most recently as the Inmate
Director of the Transitional Services Program in which he
oversees 15 to 20 other inmates, but also continues to work
extensively to promote the rehabilitation of other inmates.
Petitioner worked to create the Stop the Violence Peace
Initiative at Sing Sing Correctional Facility to address violence
within the prison and helped to raise $10,000 for the prison's
Family Center, as well as for activities and school supplies for
the children of inmates. He has established plans for employment
outside of prison and successful integration back into the
community in the form of letters of reasonable assurance from
three organizations for employment and counseling, as well as
close relationships with two established mentors. If released,
petitioner would live with his wife, who he has known for more
                              -16-                518301

than 30 years, and enjoy the support of a large network of
friends and family.

      Petitioner's behavioral record during his approximately 30
years of incarceration is extraordinary. He has incurred only
one infraction ticket – and that almost a quarter century ago –
for excess/altered clothing.4 Moreover, according to both an
independent psychological evaluation and his COMPAS Risk and
Needs Assessment instrument, he is at the lowest possible risk
level for reoffending. The author of the former evaluation
stated that "[t]here is nothing further [petitioner] could be
expected to do while incarcerated that could lower his risk
level."

      Over the years, petitioner has received an unprecedented
outpouring of support and advocacy for his release by, among
others, over 20 correction staff who supervise him on a daily
basis, a former parole commissioner, the former Commissioner of
Corrections and Community Supervision and the Assistant District
Attorney who prosecuted his case. The Superintendent of Fishkill
Correctional Facility, where petitioner is currently
incarcerated, also wrote two letters in support of petitioner's
release, one stating that he "would be fine having [petitioner]
and his family as [his] neighbors" and the other calling
petitioner "the poster child for [the Department of Corrections
and Community Supervision]" and its programs.5 A retired parole
commissioner who denied petitioner's release in 2002 and 2006
wrote that he "strongly feel[s]" that petitioner "does [not]
deserve to spend the remainder of his life incarcerated."
Hundreds of other inmates and members of petitioner's community
submitted letters of support or signed petitions in support of
his release, prompting one commissioner to state, "I don't think


     4
        It bears repeating that petitioner had never been
convicted of a crime prior to that which resulted in his
incarceration.
     5
        Notably, Superintendent William J. Connolly shared that,
in his 34 years in the corrections field, he authored only seven
letters of this nature.
                              -17-               518301

I've ever seen this many letters by correction officers in
anyone's file," and another commissioner to remark that, as "one
of the longest serving currently on the [B]oard . . ., [he had
not] seen the amount of support that [petitioner has]."

      Despite this abundance of evidence demonstrating
petitioner's extraordinary rehabilitative achievements that would
appear to strongly militate in favor of granting parole, two
commissioners declined to do so, seemingly on the sole basis that
a police officer was killed during the course of an attempted
robbery. As one of those commissioners frankly stated to
petitioner during the hearing, "if you're held, the reason you
would be held is because a police officer was murdered in the
line of duty." "The Legislature, however, has not defined
'seriousness of [the] crime' in terms of specific categories of
either crimes or victims" (Matter of King v New York State Div.
of Parole, 190 AD2d 423, 433 [1993], affd 83 NY2d 788 [1994]).
There can be no dispute that the crimes for which petitioner was
convicted are serious and resulted in the tragic death of a
police officer, but a blind eye cannot be turned to the facts
underlying those offenses. Not insignificantly, petitioner was
convicted of murder under the felony murder statute, requiring an
intention on the part of petitioner to commit the underlying
felony, but not requiring proof that he fired the weapon or had
an intention to kill (see Penal Law § 125.25 [3]). Indeed, upon
sentencing, Supreme Court noted that the evidence demonstrated
that petitioner "did not go out into the street with the
intention of committing murder." Although "every murder
conviction is inherently a matter of the utmost seriousness since
it reflects the unjustifiable taking and tragic loss of a human
life . . ., the Legislature has determined that a murder
conviction per se should not preclude parole" (Matter of King v
New York State Div. of Parole, 190 AD2d at 433; see also Matter
of Costello v New York State Bd. of Parole, 101 AD3d 1512, 1517
[2012, Spain, J. dissenting], revd on other grounds ___ NY3d ___,
2014 NY Slip Op 04805 [2014] [noting that "those who oppose
petitioner's parole release openly advocate the recurring
position that an inmate convicted for the death of a law
enforcement officer — even a nonshooter convicted of felony
murder, as here — should never be released on parole. It bears
emphasis that this was not and is not the law."]).
                              -18-                 518301


      Upon considering all of the evidence, I am left with the
inescapable conclusion that the Board's decision to deny parole
release to petitioner was irrational. Accordingly, I would
reverse the judgment, annul the Board's determination and remit
the matter to the Board for further proceedings not inconsistent
with this decision.


Garry, J. (dissenting).

      I fully agree with the dissent; however, I write separately
to raise an additional issue. As previously stated in my
concurring opinion in Matter of Montane v Evans (116 AD3d 197,
205 [2014], lv granted 23 NY3d 903 [2014]), I believe that our
own Court has established an overbroad rule in appeals from
denials of parole. The majority asserts that this clearly
extraordinary case is not susceptible to reversal upon judicial
review; we have then wholly abdicated our critical judicial
function, and the courthouse doors are closed. For all the
reasons stated in the thorough analysis of the Presiding Justice,
this determination was irrational. No sound basis supports this
individual's continuing incarceration. While our review powers
are limited, they should not be applied in a manner that is so
inordinately deferential as to render the appellate review
process a mere sham.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
