Opinion
No. 5396/2012.
2013-02-28
In the Matter of the Application of Samuel SAWYER, Petitioner, v. DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Richard D. Petrus, Jr., Esq., New York City, Attorney for Petitioner. Barry Kaufman, Esq., Assistant Attorney General, Office of the New York State Attorney General, Poughkeepsie, Attorney for Respondent.
Richard D. Petrus, Jr., Esq., New York City, Attorney for Petitioner. Barry Kaufman, Esq., Assistant Attorney General, Office of the New York State Attorney General, Poughkeepsie, Attorney for Respondent.
JAMES D. PAGONES, J.
This petition for a judgment pursuant to CPLR Article 78 reversing the determination of the Department of Corrections and Community Supervision (“DOCCS”) which denied petitioner's request to modify and/or strike certain conditions of parole, is denied. Petition dismissed.
BACKGROUND INFORMATION RELEVANT TO THIS PROCEEDING
On January 12, 1996, petitioner was sentenced following his conviction of: 1) attempted murder in the second degree, a B violent felony, for which he received an indeterminate term of imprisonment with a minimum of eight and a third (8) years and a maximum of twenty-five (25) years; 2) assault in the first degree, a C violent felony, for which he received an indeterminate term with a minimum of five (5) years and a maximum of fifteen (15) years to run concurrently, and 3) criminal possession of a weapon in the fourth degree, a class A misdemeanor, for which he was sentenced to one (1) year in the county jail, which time was merged into the indeterminate sentence. (Answer and Return, Ex. 4 at 10–11). The conviction was based upon petitioner's attempt to murder his then wife. The sentencing judge stated, “Your relationship with the women in your life has been savage and brutal. I don't know why.” (Answer and Return, Ex. 4 at 10).
On February 3, 2011, a parole warrant was issued charging petitioner with violating no contact conditions concerning various women. A final revocation hearing occurred on April 25, 2011 after which the decision to revoke parole was rendered. The decision was affirmed on May 3, 2011, parole was revoked, and a fifteen (15) month time assessment was imposed. On May 16, 2011, petitioner was readmitted to state prison. ( Id., at 11).
On January 30, 2012, the Board of Parole imposed the following special conditions to complement other conditions in anticipation of petitioner's re-release:
“I will abide by a curfew established by the P.O.
I will participate in anti-aggression/anti-violencecounseling as directed by the P.O.
I will not associate in any way or communicate by anymeans with the victim, Diane Calandiello withoutpermission of the P.O.
I will not associate in any way or communicate by anymeans with Pamela Sawyer, Karen Pfeiffer and AlyceKosofsky without the permission of the P.O.
I will participate in domestic violence counseling as directed by the P.O.
I will abide by all geographic restrictions imposed by the P.O.”
On May 2, 2012, petitioner signed a certificate of release to parole supervision and special conditions of release to parole supervision (Form 3020A). He was re-released to parole supervision the next day. ( Id., at 11 and Ex. 26).
On May 4, 2012, petitioner signed another special conditions form upon reporting to the parole office in the Poughkeepsie, New York area. The additional special conditions are:
“I WILL have NO contact, directly, indirectly, through a third party, electronically, or by initiation or response with Diane Calandiello, Pamela Sawyer, Alyce Kosofsky, Karen Pfeiffer.
I WILL enter, complete and comply with a Domestic Violence Offenders Program as directed by my Parole Officer.
I WILL NOT reside with any partner without prior written permission of my parole officer.
I WILL immediately provide my Parole Officer the contact information for any and all relationships I become involved in.” ( Id., Ex. 27)
The record indicates that petitioner commenced the thirty-three (33) week “Evolve” domestic violence counseling program as required by the special conditions in mid-June, 2012. ( Id., Exs. 28 and 29dd).
On July 9, 2012, the Parole Bureau Chief in Poughkeepsie received (Id at Ex. 29z) a letter drafted by petitioner's counsel, dated June 29, 2012 (Id. at Ex. 30). The letter requests the removal or modification of some of the special conditions, summarized as follows:
1. Modify special condition number 10, dated May 2, 2012 so as to allow contact with Alyce Kosofsky;
2. Remove the special conditions requiring petitioner to complete domestic violence counseling and anti-aggression/anti-violence counseling as directed by his parole officer;
3. Modify the condition and special condition prohibiting petitioner from leaving the State of New York and obligating him to abide all geographic conditions imposed by his parole officer;
4. Modify curfew restrictions; and,
5. Removing all special conditions relating to GPS restrictions imposed upon petitioner.
The Bureau Chief responded by letter, dated July 19, 2012 ( Id., Ex. 31), as follows:
“I am in receipt of your correspondence dated June 29, 2012 concerning Samuel Sayer, who is currently under parole supervision in the Poughkeepsie Area Office. I have carefully reviewed your letter and the accompanying documents.
At this time, Mr. Sawyer's conditions of parole will remain in effect without modification.
Please note that Mr. Sawyer is permitted to drive a motor vehicle, and with regard to the curfew and geographic restrictions, Mr. Sawyer may request a curfew extension as well as permission to travel outside of Ulster County as deemed necessary on a case by case basis.
We will be periodically reviewing Mr. Sawyer's special conditions as he remains under parole supervision. The special conditions may be modified in the future based on Mr. Sawyer's compliance with supervision mandates, his identified needs, and public safety concerns.
Mr. Sawyer may speak with his assigned parole officer if he has any questions or concerns regarding his parole supervision. He may also request to meet with the Senior Parole Officer and this writer if necessary to further discuss any concerns.
Thank you for writing to us on behalf of Mr. Sawyer.”
This proceeding for relief pursuant to CPLR Article 78 was commenced on September 28, 2012.
LEGAL ARGUMENTS
Petitioner's position is grounded in the argument that the respondent's denial was wholly arbitrary and capricious. (CPLR 7803[3].) The respondent asserts that this proceeding should be dismissed as it is barred by the applicable statute of limitations as set forth in CPLR 217(1). Alternatively, the respondent seeks dismissal on substantive grounds.
DECISION AND JUDGMENT
Neither the petitioner's position nor the respondent's statute of limitations argument are persuasive. However, the respondent's substantive arguments effectively rebut petitioner's CPLR 7803(3) claim so as to warrant dismissal of the petition.
STATUTE OF LIMITATIONS
The respondent cites two (2) competing authorities on the issue of when the four (4) month statute of limitations begins when a challenge to parole conditions or special conditions occurs. The first is Matter of Maldonado v. New York State Division of Parole, 87 AD3d 1231 (3d Dept.2011). The panel which decided Maldonado determined that the four (4) month statute of limitations in which to challenge a special condition begins upon its imposition. In this proceeding, the respondent urges that the operative date would be May 4, 2012, the day when petitioner signed the last set of special conditions associated with his parole re-release. The proceeding was commenced on September 28, 2012 which would be beyond the four (4) month limitation period. Thus, the proceeding would be time-barred.
The second authority is Matter of Moller v. Dennison, 47 AD3d 818 (2d Dept.2008), lv appl den'd 10 NY3d 708 (2008). The Appellate Division determined that the four (4) months do not begin until the request is formally denied. ( Id., at 819). The request by petitioner's counsel to either modify or strike certain special conditions was denied in the Bureau Chief's letter of July 19, 2012. Under this scenario, the proceeding is timely.
The respondent urges the court to follow the Maldonado determination regarding the statute of limitations, rather than Moller. (Answer and Return, at 3). It is noted that if the Third Department case was, in fact, the only New York authority on point, this court would be obligated to follow its precedent under the doctrine of stare decisis. (Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664 [2d Dept.1984].) However, such is not the case here, as the Second Department, where this court is situated, has ruled upon the point under consideration in its Moller decision. Any conflict in the law between the two departments regarding this issue must be resolved by the Court of Appeals. ( Id., at 664). Therefore, the time frame established in the Moller decision will be applied with a finding that this proceeding was commenced in a timely fashion.
SUBSTANTIVE ARGUMENTS
The record indicates that petitioner has a history of domestic violence, substance abuse, mental health issues, infidelity, violative and manipulative behavior. Women are the focus of such behavior.
There is no federal or state constitutional right to be released to parole supervision prior to serving a full sentence. New York has discretion to place restrictions on parole release. (Matter of M.G. v. Travis, 236 A.D.2d 163, 167 [1st Dept.1997], lv den'd 91 N.Y.2d 814 [1998].) According to Executive Law § 259–c(2) and 9 NYCRR § 8003.3, special conditions may be imposed by the Division of Parole before or after a parolee's release. (Matter of Williams v. New York State Division of Parole, 71 AD3d 524, 525 [1st Dept.2010], appl dism 15 NY3d 770 [2010], lv appl den'd 15 NY3d 710 [2010].)
The imposition of a special condition is discretionary in nature. It is ordinarily beyond judicial review as long as it is made according to law and no positive statutory requirement is violated. ( Matter of Williams, supra, at 525.) The circumstances of the parolee's crime may be taken into account when setting these conditions. (Matter of Ariola v. New York State Division of Parole, 62 AD3d 1228, at 1229 [3d Dept.2009], lv appl den'd 13 NY3d 707 [2009];Matter of M.G. v. Travis, supra, at 167.)
This Court has no authority to substitute its own discretion for that of the individuals charged with the responsibility of designing the terms of petitioner's parole release if each condition is rationally related to his criminal history, past conduct and future chances of recidivism. (Matter of Boehm v. Evans, 79 AD3d 1445, 1447 [3d Dept.2010], lv appl den'd 16 NY3d 707 [2011];Matter of Williams v. New York State Division of Parole, supra, at 525.) The petitioner has failed to demonstrate that the respondent has deviated from its discretionary authority to such an extent that judicial intervention is warranted. All of the challenged special conditions are reasonably related to legitimate penological interests. ( Matter of Boehm v. Evans, supra, at 1447.)
The conditions in question are neither arbitrary nor capricious in light of the record summarized above. (Matter of Ahlers v. New York State Division Parole, 1 AD3d 849, 850 [3d Dept.2003].) Petition dismissed.
On this application, the Court considered the notice of petition supported by a verified petition with eight (8) exhibits, verified Answer and Return with thirty-one (31) exhibits and petitioner's reply. The Attorney General is directed to retrieve Answer and Return Exhibits 1, 3, 6, 9, 11, 20, 21, 29a, 29d, 29e, 29q, and 29u which were submitted for in camera review and preserve the same through completion of the appellate process.
The foregoing constitutes the decision and judgment of the Court.