                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 29, 2015                   520454
________________________________

In the Matter of JOHN DUFFY,
                    Respondent,
      v
                                            MEMORANDUM AND ORDER
NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Appellants.
________________________________


Calendar Date:   September 15, 2015

Before:   Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                             __________


      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for appellants.

      Cynthia H. Conti-Cook, Legal Aid Society, New York City,
for respondent.

                             __________


Lahtinen, J.

      Appeal from a judgment of the Supreme Court (Mott, J.),
entered October 2, 2014 in Columbia County, which granted
petitioner's application, in a proceeding pursuant to CPLR
article 78 to, among other things, annul a determination of
respondent Board of Parole denying petitioner's request for
parole release.

      In 1982, petitioner was sentenced to a prison term of 20
years to life upon his conviction of murder in the second degree
for killing a 15-year-old boy by repeatedly stabbing him. He was
denied parole in August 2013 after his seventh appearance before
respondent Board of Parole and thereafter commenced this
                              -2-                520454

proceeding. Supreme Court granted the petition and directed a de
novo hearing after determining that the Board had failed to
obtain and consider the sentencing minutes and accompanying
recommendations by the sentencing judge when, in fact, such
minutes were available. The court further directed the Board to
"explicitly address[]" the "degree to which [the victim impact
statements] figure in the Board's decision." Respondents
appeal.1

      Inasmuch as the sentencing minutes – previously believed to
have been lost – were located after the Board's decision,
directing a de novo hearing for the Board to consider such
minutes was not error under these unique circumstances (see
Matter of Smith v New York State Div. of Parole, 64 AD3d 1030,
1031 [2009]; Matter of Lovell v New York State Div. of Parole, 40
AD3d 1166, 1167 [2007]; Matter of Standley v New York State Div.
of Parole, 34 AD3d 1169, 1170-1171 [2006]). Although the
sentencing minutes were available by the time Supreme Court
decided the petition and do not explicitly reference a parole
recommendation, the sentencing judge nonetheless implicitly
addressed such issue by discussing in some detail his discomfort
with the required maximum range of the sentence (i.e., life in
prison) and then imposing less than the maximum on the lower
range where he had discretion. Such factors, together with the
failure to timely locate available sentencing minutes and the
fact that the Board's determination rested primarily upon the
serious nature of the crime (see Matter of Jorge v Hammock, 84
AD2d 362, 364 [1982]), provide a narrow path for distinguishing
this case from those where we have found harmless the Board's
failure to consider the sentencing minutes (see e.g. Matter of
Matos v New York State Bd. of Parole, 87 AD3d 1193, 1194 [2011];
Matter of Ruiz v New York State Div. of Parole, 70 AD3d 1162,
1163 [2010]).

      Supreme Court's directive that the Board explicitly address
the degree to which the victim impact statements figured in its


    1
        Contrary to petitioner's contention, Supreme Court's
"decision/order" constituted an appealable final judgment within
the context of this CPLR article 78 proceeding.
                              -3-                520454

decision was improper. Among the many factors the Board is
required by statute to consider are statements from crime victims
or their representatives if they are deceased or incapacitated
(see Executive Law § 295-i [2] [c] [A]). While the Board's
ultimate decision denying parole cannot be wholly conclusory,
this does not mean that each statutory factor must be discussed
at length, as it is established that the Board "need not
enumerate, give equal weight [to] or explicitly discuss every
factor considered" (Matter of Leung v Evans, 120 AD3d 1478, 1479
[2014], lv denied 24 NY3d 914 [2015] [internal quotation marks
and citations omitted]; see Matter of King v New York State Div.
of Parole, 83 NY2d 788, 791 [1994]; Matter of Hamilton v New York
State Div. of Parole, 119 AD3d 1268, 1270-1271 [2014]; Matter of
Montane v Evans, 116 AD3d 197, 203 [2014], lv granted 23 NY3d 903
[2014], appeal dismissed 24 NY3d 1052 [2014]; Matter of Dalton v
Evans, 84 AD3d 1664, 1664 [2011]; Matter of Abdur-Raheem v New
York State Bd. of Parole, 78 AD3d 1412, 1413 [2010]). The Board
cannot, however, rely on factors outside the scope of the statute
in reaching its decision (see Matter of King v New York State
Div. of Parole, 83 NY2d at 791).

      In light of the brutal nature of petitioner's crime and the
surrounding circumstances, it is not particularly surprising that
the victim's family has remained vigilant and vocal in opposing
parole. In doing so, some family members have publicly made
certain factual allegations about petitioner – including in a
self-published book – which petitioner adamantly denies.
Moreover, some of the confidential submissions readily reflect
the raw emotions of a close-knit family traumatized by a depraved
and senseless murder. When the Legislature required the Board to
consider victims' statements, it undoubtedly realized that these
submissions would often be emotional and at times even touch upon
inappropriate matters. Such fact does not require the Board to
expressly disavow in its decision inappropriate matters
interjected by victims or to somehow quantify the extent or
degree to which it considered appropriate parts of victims'
statements while disregarding other parts in its overall analysis
of the statutory factors. Here, there is nothing in the Board's
decision indicating that it was influenced by, placed weight
upon, or relied upon any improper matter, whether in the victim's
family statements or otherwise.
                                -4-              520454

        Peters, P.J. and Lynch, J., concur.


McCarthy, J. (dissenting).

      I disagree with the majority's conclusion that the
sentencing minutes contain a parole recommendation, and
therefore, I respectfully dissent.1 Appellate courts should be
careful to permit sentencing courts to make a record of their
"due consideration [of] . . . the crime charged, the particular
circumstances of the individual before the court and the purpose
of a penal sanction, i.e., societal protection, rehabilitation
and deterrence," and should not construe such remarks as parole
recommendations merely because parole determinations require
similar considerations (People v Farrar, 52 NY2d 302, 305 [1981];
accord People v Jones, 43 AD3d 1296, 1299 [2007], lv denied 9
NY3d 991 [2007]; compare Executive Law § 259-i [2] [c] [A]). The
sentencing minutes here reveal that County Court (Kalinowski, J.)
made substantive remarks regarding the senselessness of the
crime, the difficulty of sentencing petitioner due to his young
age and the constraints that the law placed on the sentence to be
imposed. That court neither mentioned the word parole nor used
words to a similar effect to describe a future determination
regarding petitioner's release from prison. The comments that
the court made are attributable to its due consideration of the
proper sentence for petitioner and, therefore, I cannot conclude
that it intended to make a parole recommendation. Accordingly, I
find the failure to consider the sentencing minutes to be
harmless (see Matter of Matos v New York State Bd. of Parole, 87
AD3d 1193, 1194 [2011]; Matter of Motti v Alexander, 54 AD3d
1114, 1115 [2008]).




    1
        I agree with the majority's conclusion regarding the
victim impact statements.
                              -5-                  520454

      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as directed respondent Board
of Parole to explicitly address the degree to which the
statements of the victim's family figured in its decision, and,
as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
