                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 28, 2016                    521536
________________________________

In the Matter of DEMPSEY
   HAWKINS,
                    Respondent,
      v
                                            OPINION AND ORDER
NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Appellants.
________________________________


Calendar Date:   February 17, 2016

Before:   McCarthy, J.P., Egan Jr., Rose and Lynch, JJ.;
          Garry, J., vouched in.

                             __________


      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for appellants.

     Issa Kohler-Hausmann, New York City, for respondent.

      New York Civil Liberties Union, New York City (Philip
Desgranges of counsel), and The Legal Aid Society, New York City
(Cynthia Conti-Cook of counsel), amici curiae.

                             __________


McCarthy, J.P.

      Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered May 14, 2015 in Sullivan 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.
                              -2-                521536

      When petitioner was 16 years old, he strangled to death his
14-year-old girlfriend and then hid her body. Thereafter,
petitioner actively lied about his responsibility for the crime
for several months. Approximately two years after the crime, the
victim's body was discovered. Petitioner was eventually arrested
and then tried and convicted of murder in the second degree. He
was thereafter sentenced, in 1979, to a prison term of 22 years
to life.

      Petitioner has been denied parole release nine times since
becoming eligible for it in 2000. At the time of his March 2014
parole release hearing, at issue on this appeal, petitioner was
54 years old and had served 36 years of his sentence. Respondent
Board of Parole denied petitioner's request for parole release
upon the conclusion that, among other things, granting his
release "would so deprecate the seriousness of [his] offense as
to undermine respect for the law" and imposed a 24-month hold to
be followed by another appearance. When the Board's Appeals Unit
failed to rule on petitioner's administrative appeal within four
months (see 9 NYCRR 8006.4 [c]), petitioner commenced this
proceeding challenging the Board's determination, requesting
either his immediate release or a de novo parole release hearing.
Supreme Court, among other things, annulled the determination,
remanded for a de novo parole release hearing and precluded one
of the Board's commissioners from participating in any future
parole proceedings involving petitioner.1

      We agree with petitioner that, as a person serving a
sentence for a crime committed as a juvenile, petitioner has a
substantive constitutional right not to be punished with a life
sentence if the crime reflects transient immaturity and that
petitioner was denied his constitutional right to a meaningful
opportunity for release when the Board failed to consider the
significance of petitioner's youth and its attendant
circumstances at the time of the commission of the crime. The


    1
        Contrary to petitioner's argument, Supreme Court's
decision and order constituted an appealable final judgment (see
Matter of Duffy v New York State Dept. of Corr. & Community
Supervision, 132 AD3d 1207, 1208 n [2015]).
                              -3-                521536

Board, as the entity charged with determining whether petitioner
will serve a life sentence, was required to consider the
significance of petitioner's youth and its attendant
circumstances at the time of the commission of the crime before
making a parole determination. That consideration is the minimal
procedural requirement necessary to ensure the substantive Eighth
Amendment protections set forth in Graham v Florida (560 US 48
[2010]), Miller v Alabama (___ US ___, 132 S Ct 2455 [2012]) and
Montgomery v Louisiana (___ US ___, 136 S Ct 718 [2016]).

      For the purposes of sentencing, "children are
constitutionally different from adults" (Montgomery v Louisiana,
136 S Ct at 733 [internal quotation marks and citation omitted];
see Miller v Alabama, 132 S Ct at 2458). This difference stems
from three primary distinctions:

           "First, children have a lack of maturity
           and an underdeveloped sense of
           responsibility, leading to recklessness,
           impulsivity, and heedless risk-taking.
           Second, children are more vulnerable to
           negative influences and outside pressures,
           including from their family and peers;
           they have limited control over their own
           environment and lack the ability to
           extricate themselves from horrific,
           crime-producing settings. And third, a
           child's character is not as well formed as
           an adult's; his [or her] traits are less
           fixed and his [or her] actions less likely
           to be evidence of irretrievable depravity"
           (Montgomery v Louisiana, 136 S Ct at 733
           [internal quotation marks and citations
           omitted]; see Miller v Alabama, 132 S Ct
           at 2464; Roper v Simmons, 543 US 551, 569-
           570 [2005]).

For these reasons, primarily, "the case for retribution is not as
strong with a minor as with an adult" and "[t]he need for
incapacitation is lessened, too, because ordinary adolescent
development diminishes the likelihood that a juvenile offender
                              -4-                521536

forever will be a danger to society" (Montgomery v Louisiana, 136
S Ct at 733 [internal quotation marks and citations omitted]; see
Miller v Alabama, 132 S Ct at 2465; Graham v Florida, 560 US at
71-72). Consistent with these conclusions, the Supreme Court of
the United States held in Miller v Alabama (supra) that mandatory
sentences of life without the possibility of parole for juvenile
homicide offenders violate the Eighth Amendment's prohibition on
cruel and unusual punishment (id. at 2460). As that Court has
since clarified, a substantive rule announced in Miller is "that
life without parole is an excessive sentence for children whose
crimes reflect transient immaturity" (Montgomery v Louisiana, 136
S Ct at 735). The Court considered this guarantee in the context
of the sentencing stage, and it found that the "procedural
requirement necessary to implement [this] substantive guarantee"
is "a hearing where youth and its attendant characteristics are
considered" for the purpose of "separat[ing] those juveniles who
may be sentenced to life without parole from those who may not"
(id. at 734-735 [internal quotation marks and citation omitted];
see Miller v Alabama, 132 S Ct at 2471).

      In addressing whether a juvenile's sentence must include
the possibility of parole, the Court has given some guidance as
to the promise that a parole determination represents. The Court
has clarified that the relevant distinction between a
constitutional and unconstitutional life sentence for a juvenile
homicide offender – for all but the rare case of an irreparably
corrupt juvenile – is that a constitutional sentence guarantees,
at some point, a "meaningful opportunity to obtain release"
(Graham v Florida, 560 US at 75; see Montgomery v Louisiana, 136
S Ct at 736).2 As the Court further made clear, it did not see
its role, upon reaching this conclusion, to prescribe a


    2
        Contrary to the dissent's suggestion, we do not contend
that a sentence such as petitioner's "is the functional
equivalent of being sentenced to life in prison without the
possibility of parole," except where, as here, the Board deprives
an offender of a meaningful opportunity for release. We
understand the dissent to agree that petitioner's sentence
promised him a meaningful opportunity to obtain release, and thus
we perceive no disagreement on that point.
                              -5-                521536

particular opportunity for release that states must afford;
instead, the Court found that "[i]t is for the [s]tate, in the
first instance, to explore the means and mechanisms for
compliance" (Graham v Florida, 560 US at 75). Although the Court
has not specifically reviewed a case regarding a parole
determination for a juvenile homicide offender, it is axiomatic
that such an offender still has a substantive constitutional
right not to be punished with life imprisonment for a crime
"reflect[ing] transient immaturity" (Montgomery v Louisiana, 136
S Ct at 735). Further, the Court has made abundantly clear that
the "foundational principle" of the Eight Amendment jurisprudence
regarding punishment for juveniles is "that [the] imposition of a
[s]tate's most severe penalties on juvenile offenders cannot
proceed as though they were not children" (Miller v Alabama, 132
S Ct at 2466). A parole board is no more entitled to subject an
offender to the penalty of life in prison in contravention of
this rule than is a legislature or a sentencing court.

      With this in mind, we reach petitioner's contention that he
was denied a meaningful opportunity for release.3 The Court has
found that, at the sentencing stage, a defendant who committed a
crime as a juvenile is procedurally entitled to a "hearing where
'youth and its attendant characteristics' are considered"4 in


    3
        Petitioner falls within the relevant class of persons due
to the fact that he was sentenced for a crime that he committed
as a juvenile and that, but for a favorable parole determination,
he will spend the remainder of his life in prison. "[T]he remote
possibility of [executive clemency] does not mitigate the
harshness of th[is] sentence" for Eighth Amendment purposes
(Graham v Florida, 560 US at 70).
    4
        The Court did not merely require an opportunity for a
defendant to argue that his or her youth mattered; "Miller
requires a sentencer to consider a juvenile offender's youth and
attendant characteristics" before punishing a defendant with a
life in prison (Montgomery v Louisiana, 136 S Ct at 734 [emphasis
added]). Even if the Court had not made this clear, a rule
satisfied by a finding that a petitioner had an opportunity to
advocate to the Board that it should consider his or her youth at
                              -6-                521536

order to separate out those who can be punished by a life in
prison from those who cannot (Montgomery v Louisiana, 136 S Ct at
735, quoting Miller v Alabama, 132 S Ct at 2460). We agree with
petitioner that an analogous procedural requirement is necessary
at the parole release hearing stage. For those persons convicted
of crimes committed as juveniles who, but for a favorable parole
determination will be punished by life in prison, the Board must
consider youth and its attendant characteristics in relationship
to the commission of the crime at issue (see Hayden v Keller,
2015 WL 5773634, *8-10, 2015 US Dist LEXIS 134426, *22-29 [ED NC,
Sept. 25, 2015, No. 5:10-CT-3123 (BO)]; Greiman v Hodges, 79 F
Supp 3d 933, 944 [SD Iowa 2015]).5

      Here, neither the hearing transcript nor the Board's
written determination6 reflects that the Board met its


the time of the crime would be particularly inappropriate in the
parole release determination setting. The Court of Appeals has
determined that potential parolees are not entitled to an
adversarial-type parole release hearing and, relatedly, concluded
that they have no right to be represented by counsel at such a
hearing (see Matter of Briguglio v New York State Bd. of Parole,
24 NY2d 21, 29 [1969]). The dissent apparently confuses our
conclusion here – that we will not find the Board to have
considered petitioner's youth at the time of the crime based on
the mere fact that petitioner argued that his youth should be
considered – with a claim that petitioner need not raise factors
before the Board. As that is not a claim that we make – and the
issue is irrelevant considering the fact that petitioner did
raise the issue of his youth before the Board – we see no need to
further address the dissent's contention in this regard.
    5
        This format is consistent with Montgomery v Louisiana
(supra), which clarifies that a state "may remedy a Miller
violation by permitting juvenile homicide offenders to be
considered for parole, rather than by resentencing them" (id. at
736).
    6
        We are not persuaded by the fact that our dissenting
colleagues were able to find an example in a hearing transcript
                              -7-                521536

constitutional obligation to consider petitioner's youth and its
attendant characteristics in relationship to the commission of
the crime.7 The Eighth Amendment "requires a sentencer to
consider a juvenile offender's youth and attendant
characteristics" before punishing an offender with a life in
prison (Montgomery v Louisiana, 136 S Ct at 734 [emphasis
added]). Because petitioner was entitled to a meaningful
opportunity for release in which his youth, and its attendant
characteristics, were considered by the Board, we agree with
Supreme Court that petitioner is entitled to a de novo parole
release hearing.


from 2000 – eight parole hearings before the one that is actually
at issue — that evinces that at least one then-Board member
considered petitioner's development at the time of the crime in
reaching a parole determination that took place 14 years prior to
this determination.
    7
        The one incidental remark by a commissioner indicating
that petitioner must have been particularly "cold and callous"
for someone his age due to the fact that he did not confess to
the authorities after the commission of his crime does not alter
this conclusion. The Eighth Amendment required inquiry into and
careful consideration of whether the "crime reflects transient
immaturity" (Montgomery v Louisiana, 136 S Ct at 735). Whether a
juvenile confessed to his or her crime is not relevant to that
inquiry. Moreover, the Court has made clear that the aspect of
youth that is relevant is "how children are different [from
adults], and how these differences counsel against" treating them
as though they were the same as adults (id. at 733 [internal
quotation marks and citations omitted]). The commissioner's
conclusion that a child who does not confess to a crime is more
morally culpable than an average child – who the commissioner
apparently believed would have confessed – did not follow or
constitute an inquiry regarding petitioner's maturation, or lack
thereof, since the time of the crime and in relationship to
becoming an adult (see Hayden v Keller, 2015 WL 5773634 at *3,
10, 2015 US Dist LEXIS at *6-9, 28-29 [parole scheme that only
considers youth in a manner irrelevant to the Eighth Amendment
fails to comply with that amendment]).
                              -8-                521536

      Supreme Court, however, erred here in precluding one of the
Board's commissioners from participating in any future parole
proceeding involving petitioner.8 Petitioner did not request
such relief, and the record provides no basis for a conclusion
that the commissioner at issue is either unqualified or biased.
The remaining arguments have been considered and are either
academic or without merit.


Garry, J. (concurring).

      We fully concur with the analysis relative to the
constitutional infirmities in this record. We write separately
to emphasize that review of the record as a whole reveals
"irrationality bordering on impropriety," a degree of arbitrary
and capricious conduct permitting judicial intervention (see
Matter of Silmon v Travis, 95 NY2d 470, 476 [2000] [internal
quotation marks and citations omitted]).

      Although judicial review is strictly and exceptionally
limited relative to the scope and degree of analysis, respondent
Board of Parole is required to review and consider certain
statutory factors (see Executive Law § 259-i; Matter of Dolan v
New York State Bd. of Parole, 122 AD3d 1058, 1059 [2014], lv
denied 24 NY3d 915 [2015]; Matter of Hamilton v New York State
Div. of Parole, 119 AD3d 1268, 1269 [2014]; see also Matter of
Montane v Evans, 116 AD3d 197, 204-206 [2014] [Garry, J.,
concurring], appeal dismissed 24 NY3d 1052 [2014]). Among these
statutory factors, petitioner would be subject to immediate
deportation upon release from incarceration. Documentation in
the record reveals that his country of origin is fully ready to
receive him, with legal and other services available, and family
support awaiting. Further, petitioner has consistently


    8
        Notably, respondents do not challenge the portion of
Supreme Court's judgment dictating that the commissioners who sat
on this parole proceeding not sit on petitioner's de novo
hearing. As respondents inform us in their brief, the Board has
an internal procedure that would dictate the same result on this
issue regardless of Supreme Court's judgment.
                              -9-                521536

demonstrated exemplary conduct within the prison setting. He has
a minimal disciplinary history, having not been charged with any
offense of any nature since 2000; he has never been charged with
an infraction involving either violence or drug use in the entire
course of his incarceration, from 1979 at age 18 through his
hearing at age 54. He has an excellent history of program
participation and appears to have pursued every available
opportunity within the prison setting to develop himself, with
respect to skills as well as insight and maturity.

      Petitioner has expressed remorse for his conduct. The
record is replete with recommendations from a wide variety of
individuals who are apparently fully aware of the gravity and
heinous nature of petitioner's criminal conduct, but nonetheless
assert, based upon their experience and observations, that
petitioner has been rehabilitated during the course of his
lengthy confinement. Considering the record as a whole, together
with the substantial constitutional issues discussed in the
opinion of our colleague, we find that judicial intervention is
required here. We further agree that the portion of Supreme
Court's determination directing the adoption of a specific future
procedure by the Board must be reversed (see Matter of Hawthorne
v Stanford, 135 AD3d 1036, 1041-1042 [2016]). Accordingly, we
join in the opinion modifying the judgment, without reservation.

     Lynch, J., concurs.


Egan Jr., J. (concurring in part and dissenting in part).

      On May 15, 1976, the victim's parents called the police to
report that their 14-year-old daughter was missing. An
investigation and search immediately began and, after it was
discovered that petitioner – the victim's 16-year-old former
boyfriend – had been with the victim on the day that she was last
seen, petitioner was questioned by the authorities. Petitioner
denied having any knowledge of the victim's whereabouts and
actively participated in the search for her from May 1976 to
March 1977 – perpetuating her family's hope that she was still
alive and participating in what aptly has been described as a
hoax, casting himself in the role of a desperate teenager
                              -10-               521536

frantically searching for the girl he loved. In reality,
however, petitioner – purportedly "distraught" over the victim's
decision to acquiesce to her parents' wishes and break up with
him – had devised a plan to lure the victim to a secluded
location whereupon he would kill the victim and then kill
himself.1 Petitioner partially executed that plan – strangling
the victim with a shirt and hiding her body in a 55-gallon drum,
which he then placed inside a 12-foot shaft of an abandoned
shipyard located at the tip of Staten Island. The victim's badly
decomposed remains were not discovered until nearly two years
later.

      In the interim, petitioner continued to deny any
involvement in or responsibility for the crime and, recognizing
that he "wouldn't be able to uphold the facade" that he had
created if he remained in the area, eventually left to live in
another state. Petitioner remained out of state – attending high
school – for approximately one year, until his decision to
confide in certain friends resulted in his eventual arrest and
prosecution. In 1979, petitioner was sentenced upon his
conviction of murder in the second degree to a prison term of 22
years to life.2 Since becoming eligible for parole release in


    1
        When asked years later why he killed the victim,
petitioner replied, "I felt that I was in love with her. I felt
sexually obsessed. I couldn't possibly envision someone else
with her, and I felt the only – it's foolish to say, and
ludicrous, that I felt the only way to end my pain was through
murder." When asked why he participated in the search for the
victim, petitioner stated, "Because I was trying to maintain my
facade of innocence. I felt if I didn't participate, I would be
looked at as a suspect, and I was doing my best to evade my act."
Petitioner further acknowledged that his participation in the
search was, at times, designed to "sabotage" the search effort
and "steer [searchers] away from where the [victim's] body was"
located.
    2
        Although petitioner allegedly admitted his crime to
certain court security officers after the jury returned its
verdict, he did not acknowledge his guilt to the victim's family
                              -11-               521536

2000, petitioner has been denied release nine times based upon,
among other things, the nature of the underlying crime, which has
been variously – and appropriately – described as extremely
serious, heinous and bizarre. The majority now proposes to
afford petitioner a de novo parole hearing, finding that he has
not been afforded a "meaningful opportunity to obtain release"
(Graham v Florida, 560 US 48, 75 [2010]) and, further, that the
Eighth Amendment and the cases interpreting its application to
juvenile offenders (see Montgomery v Louisiana, ___ US ___, 136 S
Ct 718 [2016]; Miller v Alabama, ___ US ___, 132 S Ct 2455
[2012]; Graham v Florida, 560 US at 75) impose upon respondent
Board of Parole a requirement that it expressly consider – in the
context of petitioner's parole determination – petitioner's
"youth and its attendant characteristics" in relationship to the
murder that he committed nearly 40 years ago.

      We agree that Supreme Court erred in precluding one of the
Board's commissioners from participating in any subsequent parole
hearing involving petitioner and, to that limited extent, we
concur in the majority's decision. As to the balance, however,
we are satisfied that New York's sentencing and parole procedures
afford petitioner a "meaningful opportunity to obtain release"
(Graham v Florida, 560 US at 75), which is all that Graham,
Miller, Montgomery and the Eighth Amendment itself require.
Because we are of the view that no constitutional violation
occurred here, we respectfully dissent and would reverse Supreme
Court's judgment in its entirety and dismiss the petition.

      Although the majority's decision discusses at length the
characteristics that distinguish juvenile offenders from adult
offenders and explores the reasons why traditional penological
goals – retribution, deterrence, incapacitation and
rehabilitation – do not, in all but the rarest of cases, justify
imposing the most severe sentence possible upon someone who
commits a crime before he or she is 18 years old, it glosses over
the underlying factual differences that distinguish petitioner
from the defendants in Graham, Miller and Montgomery — the most
notable of which being that, unlike the defendants in those


until 1989 or 1990.
                              -12-               521536

cases, petitioner was not actually sentenced to life in prison
without the possibility of parole. In Graham, the 16-year-old
defendant was sentenced to, among other things, life in prison
following his conviction of armed burglary. As the state in
which he was sentenced (Florida) had abolished its parole system,
such defendant was – absent executive clemency – facing life in
prison without any possibility of parole (Graham v Florida, 560
US at 57). The Supreme Court of the United States held that the
Eighth Amendment prohibited a state from imposing a sentence of
life without the possibility of parole upon a juvenile
nonhomicide offender (id. at 74) – a determination grounded in
the belief that a state cannot determine, at the time of
sentencing, that such an offender "never will be fit to reenter
society" (id. at 75). In reaching that conclusion, the Court
cautioned that the Eighth Amendment does not require a state to
release a juvenile offender during his or her lifetime; rather,
the state need only afford the juvenile offender "some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation" (id.). The differences between petitioner and
the defendant in Graham are readily apparent – namely, that
petitioner was convicted of murder and was sentenced to a prison
term of 22 years to life in a state with an active parole system.
Indeed, having appeared before the Board on multiple occasions,
there is no question that petitioner has been afforded an
opportunity for release – the adequacy of which will be discussed
infra.

      The factual circumstances presented in Miller and
Montgomery are equally distinguishable from the matter now before
this Court. In Miller, the defendants were convicted of murder
in a state where the sentencing statutes "mandated that each
juvenile die in prison even if a judge or jury would have thought
that his youth and its attendant characteristics, along with the
nature of his crime, made a lesser sentence (for example, life
with the possibility of parole) more appropriate" (Miller v
Alabama, 132 S Ct at 2460). The requirement "that all children
convicted of homicide receive lifetime incarceration without
possibility of parole" (id. at 2475) and the corresponding
divestiture of any discretion to impose a lesser sentence
prompted the Court to conclude "that mandatory life without
parole for those under the age of 18 at the time of their crimes
                              -13-               521536

violates the Eighth Amendment's prohibition on cruel and unusual
punishments" (id. at 2460 [emphasis added, internal quotation
marks omitted]). Again, petitioner was not sentenced to life
without the possibility of parole, nor was he subject to a
mandatory sentencing scheme such as the one at issue in Miller.

      The Court's decision in Montgomery was even more narrowly
tailored – primarily focusing upon whether Miller had announced a
new rule of substantive law that, in turn, was entitled to
retroactive effect, i.e., whether the holding in Miller applied
to a juvenile defendant who was convicted in 1969 and, under
Louisiana law, automatically received a mandatory sentence of
life without the possibility of parole (Montgomery v Louisiana,
136 S Ct at 725-726). The Court answered that inquiry in the
affirmative, noting that "[a] [s]tate may remedy a Miller
violation by permitting juvenile homicide offenders to be
considered for parole, rather than resentencing them" (id. at
736). While the Court indeed made clear that such offenders
"must be given the opportunity to show [that] their crime did not
reflect irreparable corruption," it also reiterated that "[t]hose
prisoners who have shown an inability to reform will continue to
serve life sentences" (id.).

      Even setting aside these factual distinctions and assuming,
as the majority posits, that petitioner falls within the ambit of
Graham and its progeny3 and, further, that the sentencing


    3
        To the extent that the majority suggests that the
sentence actually imposed upon petitioner – 22 years to life – is
the functional equivalent of being sentenced to life in prison
without the possibility of parole, we disagree. As noted
previously, petitioner was not subject to the mandatory
sentencing schemes at issue in Miller and Montgomery, and his
multiple appearances before the Board belie any assertion that a
determination was made, at the time of sentencing, that he "never
[would] be fit to reenter society" (Graham v Florida, 560 US at
75). More to the point, the mere fact that petitioner may well
spend the rest of his life in prison is not dispositive, as
nothing in Graham, Miller or Montgomery either compels the
eventual release of a juvenile offender such as petitioner or –
                              -14-                521536

procedures at issue in those cases and the parole determination
under review here are governed by the same procedural safeguards4
– the key principle to be extracted from Graham, Miller and
Montgomery – that, in order to avoid an Eighth Amendment
violation, a juvenile offender must be given "some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation" (Graham v Florida, 560 US at 75) – was, in our
view, honored here. Executive Law § 259-i establishes a
procedure for affording inmates such as petitioner discretionary
release and sets forth the criteria that the Board must consider
in determining whether to grant release on parole (see Executive
Law § 259-i [2] [c] [A]). Among the criteria contained therein
is "the seriousness of the offense with due consideration to the
type of sentence, length of sentence and recommendations of the
sentencing court, . . . as well as consideration of any
mitigating and aggravating factors, and activities following
arrest prior to confinement" (Executive Law § 259-i [2] [c] [A]


in all instances – forecloses the possibility that such an
offender will die in prison. Hence, there is a strong argument
to be made that the holdings embodied in the cited cases do not
extend to petitioner in the first instance.
     4
        The majority's conclusion that petitioner's parole
determination is subject to the same procedural safeguards – and
must satisfy the same constitutional mandates – as those
applicable to the sentencing of a juvenile offender to a prison
term of life without the possibility of parole is, again, based
upon a faulty premise – namely, that denying petitioner parole,
after due consideration of all of the statutory factors set forth
in Executive Law § 259-i – is the same as having sentenced
petitioner to life in prison without the possibility of parole in
the first instance. As we believe that the sentencing and parole
phases of a criminal matter, as well as the interests and
reasonable expectations of an offender facing life in prison with
no possibility of parole versus an offender eligible for and
seeking discretionary relief, are fundamentally different, we do
not subscribe to the notion that the Eighth Amendment compels the
Board to expressly consider petitioner's "youth and its attendant
characteristics" in evaluating the propriety of his release.
                              -15-                521536

[vii]).

      Age at the time of the offense, together with what the
Supreme Court of the United States has characterized as a
juvenile's corresponding lack of maturity, sense of
responsibility and insight and increased risk of impulsivity and
recklessness, certainly would qualify as mitigating factors
within the meaning of the statute and could properly be
considered by the Board in assessing whether a particular
individual should be released on parole.5 Indeed, a review of
the transcripts of petitioner's various appearances before the
Board, including his most recent hearing in March 2014, reveals
that petitioner repeatedly raised – and the Board indeed was
aware of and considered – petitioner's age and asserted lack of
maturity at the time of the offense.6 As this Court has made
abundantly clear, "the Board [is] not required to give each
statutory factor equal weight" and, indeed, may place greater
emphasis upon the serious nature of the underlying crime (Matter
of King v Stanford, 137 AD3d 1396, ___, 26 NYS3d 815, 816 [2016];
see Matter of Feilzer v New York State Div. of Parole, 131 AD3d
1321, 1322 [2015]; Matter of Leung v Evans, 120 AD3d 1478, 1479
[2014], lv denied 24 NY3d 914 [2015]). Further, while the Board
must state the reasons for a denial of parole "in detail"
(Executive Law § 259-i [2] [a] [i]), it need not expressly recite


     5
        Although the majority suggests that it is inappropriate
to expect a potential parolee such as petitioner to raise such
factors before the Board, we do not see this as an unduly onerous
burden to impose upon someone seeking discretionary release.
     6
        For example, when petitioner appeared before the Board in
2000, one of the commissioners observed that petitioner's
"insight and depth of evaluation of the whole situation was
pretty weak at [the time of the offense], not very well
developed." Further, petitioner expressly raised his age and
lack of maturity at his appearances before the Board in 2002,
2010 and 2014 – drawing a distinction between the "well-balanced
adult" he sees himself as today and the "irrational 16 year old"
he was in 1976 and insisting that he is "not an incorrigible
career criminal."
                              -16-                 521536

each and every factor that it considered in reaching its
determination, nor must it discuss such factors at length (see
Matter of Duffy v New York State Dept. of Corr. & Community
Supervision, 132 AD3d 1207, 1208 [2015]; Matter of Leung v Evans,
120 AD3d at 1479; Matter of Montane v Evans, 116 AD3d 197, 203
[2014], appeal dismissed 24 NY3d 1052 [2014]). Upon reviewing
the transcript of petitioner's March 2014 appearance before the
Board, we are satisfied that the Board properly and adequately
considered petitioner's age and asserted immaturity at the time
of the offense before denying him discretionary release. As the
Board's determination does not exhibit "irrationality bordering
on impropriety" (Matter of Silmon v Travis, 95 NY2d 470, 476
[2000] [internal quotation marks and citation omitted]) and, for
the reasons previously discussed, does not run afoul of the
Eighth Amendment, it should not be disturbed.

     Rose, J., concurs.



      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as precluded a particular
commissioner of respondent Board of Parole from participating in
any future parole proceeding regarding petitioner, and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
