Relates to appeals of parole determination, including parole release interviews, parole decisions by the board and petitions regarding release decisions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4422
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.
STATE OF NEW YORK
________________________________________________________________________
4422
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
determination
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.
LBD01601-01-3
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.
