        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

2
TP 15-01078
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


IN THE MATTER OF LUCIANO SPATARO, PETITIONER,

                    V                             MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION, RESPONDENT.


THOMAS J. EOANNOU, BUFFALO, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by an order of the Supreme Court, Erie County [Shirley
Troutman, J.], filed June 16, 2015) to review a determination of the
New York State Board of Parole. The determination rescinded
petitioner’s parole release date.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner, an inmate serving an aggregate sentence
of 25 years to life for various convictions including murder in the
second degree (People v Spataro, 202 AD2d 1005, lv denied 84 NY2d
833), commenced this CPLR article 78 proceeding seeking to annul the
determination of the New York State Board of Parole (Board) that,
after a hearing, rescinded a prior determination granting him an open
release date. We confirm.

     A parole board may, “[i]n its discretion, . . . revoke or modify
any of its decisions or determinations” (9 NYCRR 8000.4), and a parole
release date may be rescinded when, among other things, there is
“significant information which existed . . . prior to the rendition of
the parole release decision, where such information was not known by
the board” (9 NYCRR 8002.5 [b] [2] [i]; see Matter of Ortiz v New York
State Bd. of Parole, 239 AD2d 52, 55, lv denied 92 NY2d 811). In
rescinding an inmate’s parole release date, a majority of the board
must be “satisfied that substantial evidence was presented at the
hearing to form a basis for rescinding the grant of release” (9 NYCRR
8002.5 [d] [1]; see Ortiz, 239 AD2d at 55).

     Contrary to petitioner’s contention, we conclude that the
decision of the Court of Appeals in Matter of Costello v New York
                                 -2-                             2
                                                         TP 15-01078

State Bd. of Parole (23 NY3d 1002, 1004, revg 101 AD3d 1512) does not
require annulment of the Board’s rescission determination here. In
Costello, the Court held that the Board improperly rescinded the
petitioner’s parole release “under the particular circumstances of
this case,” and emphasized that its resolution in Costello “should not
be interpreted as minimizing . . . the importance of victim impact
statements in parole board hearings” (23 NY3d at 1004).

     Here, in addition to various unrelated crimes, petitioner was
convicted of murder in the second degree after he conspired with the
victim’s wife to collect on the victim’s life insurance policy and
then shot the victim in his driveway when he returned from dinner with
his wife. The statements from the family members of that victim
submitted in conjunction with the rescission procedure detailed their
grief and the continuing ramifications of the murder on the health and
well-being of the family, and also provided information concerning the
brutality and consequences of petitioner’s crime by describing the
pain and suffering experienced by the victim before he died. The
Board was aware that the victim was not killed instantly when
petitioner shot him with a handgun at close range, and that he
received medical care at two hospitals for several weeks before
succumbing to severe bronchial pneumonia that was induced by the
gunshot wound to his neck. Nonetheless, the subsequent statements of
the family members provided detailed eyewitness accounts of the
victim’s suffering during his hospitalization, including his
unsuccessful attempts to communicate despite the fact that he had been
partially paralyzed and his vocal cords had been “destroyed” as a
result of the shooting. We thus conclude that, even if some of the
other information submitted was already known to the Board, the
abovementioned victim impact statements provided “significant
information” not previously known by the Board, and the statements
constitute substantial evidence to support the determination
rescinding petitioner’s parole release date (9 NYCRR 8002.5 [b] [2]
[i]; see 9 NYCRR 8002.5 [d] [1]; Matter of Rizo v New York State Bd.
of Parole, 251 AD2d 997, 997-998, lv denied 92 NY2d 811; Ortiz, 239
AD2d at 56).




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
