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A04422 Summary:

Amd §259-i, Exec L
Relates to appeals of parole determination, including parole release interviews, parole decisions by the board and petitions regarding release decisions.
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A04422 Actions:

02/14/2023referred to correction
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A04422 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
SPONSOR: O'Donnell
  TITLE OF BILL: An act to amend the executive law, in relation to appeals of parole determination   PURPOSE: To change the parole appeal process to provide for timely and comprehen- sive review of parole denials.   SUMMARY OF PROVISIONS: Section 1 amends subdivision 4 of section 259-i of the executive law. Section 2 amends subdivision 5 of section 259-i of the executive law. Section 3 amends subdivision i of paragraph a of subdivision 6 of the executive law. Section 4 provides for an effective date.   JUSTIFICATION: When an inmate is denied release by the Board of Parole he or she may file an administrative appeal of that denial to the board's Appeals Unit followed by an Article 78 petition to Supreme Court should the decision be upheld by the Appeals Unit. Under the board's own rules, the Appeals Unit has 120 days to answer an administrative appeal. An inmate has a right to counsel for the administrative appeals process but not for an Article 78 petition to the court. According to data from the Board of Parole, in 2012 and 2013, the Appeals Unit received more than 4000 perfected appeals and issued deci- sions in 2699 such appeals, or roughly two thirds. Of the latter, 2628 decisions were affirmed and 71 were reversed. During those same two years, only 4 decisions were made within the allotted four-month time period while 2695 were decided after the requisite deadline. Most appeals, 1279, were decided between six and nine months after the initial decision was issued by the board. In other words almost every inmate who appealed a parole determination had to wait four months while the Appeals Unit failed to make a decision before he or she was able to file an Article 78 petition in court chal- lenging the denial of parole. Of the inmates who eventually received a decision from the Appeals Unit, nearly all of them were affirmations of the board's determination. This is not a meaningful appeal process and is a waste of time for both the inmate and appointed counsel. Addi- tionally, since the board does not currently provide timely administra- tive decisions to the court, the court is in no worse position by treat- ing the parole board's determination as a final decision. When an inmate is finally able to file a petition challenging the parole denial, there is usually an additional delay of many months before the board produces a transcript of the parole interview to the petitioner and to the court. The board reports that when they use State hearing reporters, there is an average 4- to 6-month delay before the transcript is received by its own transcription unit. A month or two after the transcript is finalized the attorney general's office answers the inmate's petition and, several months later, the court issues a deci- sion. By law a parole "hit," that is, the waiting period before an inmate is eligible to reappear before the board, can be no more than two years. In most cases, by the time the court is able to make a decision on the petition, the inmate is already scheduled to see the board again. Very few cases make it to the Appellate Division because the majority of them are moot by virtue of having reached the inmate's next scheduled appear- ance before the board. By delay, the board escapes review of its deci- sions. The parole appeal process is also crippled by the fact that the board does not send the entire record below to the court for review. Recent- ly, a superintendent of a correctional facility appeared before the board to testify on behalf of an inmate seeking parole, a very rare occurrence. When the board denied parole release, the inmate appealed. The transcript given to the court did not include the superintendent's testimony. The board only sent a transcript of the interview of the inmate himself. The board routinely fails to forward letters of support and other documents to the court reviewing the record on appeal. This bill aims to speed up the process of parole appeals and provide for needed court oversight of the board's decisions. It permits inmates to bypass the parole appeals unit to appeal directly to the court and allows the court to receive the entire record that had been before the board. It transfers the right to counsel from the administrative appeal to the Article 78 petitioning process. It also permits the court broader remedies upon review, including the right to order an inmate to be released from prison. The bill requires the board to make a timely tran- script of its hearings and provide an audio recording of the hearing, including any testimony by witnesses other than the inmate being consid- ered for parole.   LEGISLATIVE HISTORY: A.5995 (2021-22, Reported to Corrections A.7445 (2018-19, reported to Corrections) A.1908 (2017-18, reported to Ways and Means) A.2463 (2015-16, reported to third reading) A.9795 (2014, reported to Rules)   FISCAL IMPLICATIONS: None.   LOCAL FISCAL IMPLICATIONS: None.   EFFECTIVE DATE: This act shall take effect one hundred twenty days after it becomes law.
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A04422 Text:

                STATE OF NEW YORK
                               2023-2024 Regular Sessions
                   IN ASSEMBLY
                                    February 14, 2023
        Introduced  by  M.  of  A.  O'DONNELL  --  read once and referred to the
          Committee on Correction
        AN ACT to amend the executive law, in  relation  to  appeals  of  parole
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Paragraphs (a) and (b) of subdivision 4 of section 259-i of
     2  the executive law, paragraph (a) as amended by section 11 of part  E  of
     3  chapter  62  of the laws of 2003 and paragraph (b) as amended by chapter
     4  322 of the laws of 2021, are amended to read as follows:
     5    (a) Except for determinations  made  upon  preliminary  hearings  upon
     6  allegations  of  violation  of  presumptive release, parole, conditional
     7  release or post-release supervision, all determinations made pursuant to
     8  this section may be appealed in accordance with rules promulgated by the
     9  board except that a decision by the board denying parole  release  shall
    10  be  a  final  decision  for the purposes of article seventy-eight of the
    11  civil practice law and rules.  Any board member who participated in  the
    12  decision  from  which  the  appeal  is  taken may not participate in the
    13  resolution of that appeal. The rules of the board  may  specify  a  time
    14  within which any appeal shall be taken and resolved.
    15    (b)  Upon  an  appeal [to the] from a board decision, the incarcerated
    16  individual may be represented by an  attorney.  Where  the  incarcerated
    17  individual is financially unable to provide for his or her own attorney,
    18  upon request an attorney shall be assigned pursuant to the provisions of
    19  subparagraph (v) of paragraph (f) of subdivision three of this section.
    20    §  2.  Subdivision 5 of section 259-i of the executive law, as amended
    21  by chapter 166 of the laws of 1991, is amended to read as follows:
    22    5. Actions of the board. Any action by the board or by a hearing offi-
    23  cer pursuant to this article shall be deemed  a  judicial  function  and
    24  shall  not be reviewable if done in accordance with law except that upon
    25  an appropriate petition the court may consider  a  release  decision  de
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 4422                             2
     1  novo.  The  court may in its own discretion require an appearance by the
     2  petitioner. The court may affirm the decision of the board,  modify  the
     3  decision,  order a de novo interview for reconsideration by the board or
     4  provide a release date for the petitioner.
     5    §  3.  Subparagraph  (i)  of paragraph (a) of subdivision 6 of section
     6  259-i of the executive law, as amended by chapter 322  of  the  laws  of
     7  2021, is amended to read as follows:
     8    (i)  The  board  shall  provide for the making of a verbatim record of
     9  each parole release interview within  thirty  days  of  such  interview,
    10  except  where  a decision is made to release the incarcerated individual
    11  to parole supervision, and each preliminary and final  revocation  hear-
    12  ing,  except when the decision of the presiding officer after such hear-
    13  ings result in a dismissal of all charged violations of  parole,  condi-
    14  tional  release  or  post  release supervision. An audio recording shall
    15  also be made of each parole release interview in its entirety. All docu-
    16  ments submitted to the board shall be included in the hearing record for
    17  purposes of appeal.
    18    § 4. This act shall take effect on the one hundred eightieth day after
    19  it shall have become a law.
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