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Defedant Seeks to Have New Parole Hearing

On November 17, 1990, a thirty-two year old plumber who was married with three children lived on West 143rd Street in Manhattan. At around 6:43 in the evening, the plumber met his brother’s wife’s boyfriend in front of 225 West 129th Street. The began to argue. They parted and went their separate ways. Later that night, the plumber and the boyfriend ran into each other again. This time, the boyfriend had another man with him. They were in a park near West 129th Street in Manhattan.

During this confrontation, a New York Criminal Lawyer said the boyfriend punched the plumber in the face. He fell to the ground and pulled out a handgun that he possessed a target license to carry. He fired at the boyfriend from his position on the ground. The boyfriend was struck in his chest and was killed. The plumber left the area, but later turned himself in to the police on November 26, 1990. The plumber stated that the shooting occurred in self-defense. He stated that when he was on the ground, he believed that the boyfriend was going to shoot him. He stated that he only shot him to prevent being shot. The police reports of the incident indicated that the boyfriend was not armed at the time of the shooting. The defendant plumber claimed that in 1982, the plumber had been shot by another man in a vehicle accident because the other man had hit his parked car. The plumber was shot twice during that incident after the other man went back to his own car to obtain his registration and insurance paperwork. When he returned to the plumber’s vehicle, he had a gun and shot him twice. In that incident, when the plumber was incapacitated on the ground, the other man attempted to shoot him again at close range. The gun misfired and the plumber’s life was spared. The plumber stated that the way that the boyfriend moved and his mannerisms, along with the 1982 history, made him believe that the boyfriend was in possession of a weapon and that he intended to use it.

The plumber did not have any criminal history, and at trial the Assistant District Attorney requested that he be sentenced to the minimum sentence required for his offense. That sentence would have been fifteen years to life. He was first eligible for parole in 2005. He was not a problem when he was in prison and did not have any disciplinary reports in his file. He worked during his prison term as a plumber’s helper in the maintenance department. He also worked as a program aide for the disabled and as a metal fabricator in the industries work area. He completed his high school equivalency degree and obtained an associate of arts of religious education college degree. A Brooklyn Criminal Lawyer said he also attended several behavioral and psychological programs to reduce his risk of recidivism upon release. These programs included Violence/Aggressive Behavior Programs, Basic Parenting, Hispanic Needs Program to Eradicate Violent Behavior.

He had several letters of reference recommending that he be released at his parole board hearing. One letter of recommendation was from a Bishop of the Salvation and Deliverance church who stated that prior to his incarceration the plumber had been active in the church. It stated that he counseled church young people against using drugs and worked to encourage them to remain in school and obtain gainful employment. The Bishop stated that the church would provide support for him upon his release. His daughter testified that upon his release that he would be welcome to live with her and her family. His first discretionary release interview was held in September of 2005 and at that time the parole board denied his parole. He was not eligible again until 2007.

The plumber’s attorney filed an administrative appeal stating that the board relied only on the evidence of the offense itself in making its decision. He felt that the board had ignored the rehabilitative component of his indeterminate sentence and the statutes of parole. The Appeal court denied his motion and upheld the decision of the parole board.

The plumber challenged the decision and suggested that the adverse determination that denied his parole should be vacated. The court moved to dismiss the motion because New York County is not the proper court venue for the case to be tried. He contends that the proper venue for the hearing should have been Dutchess County where the incident happened. The Supreme court maintained that parole board decisions are discretionary. Because they are discretionary by nature, they cannot be overturned as long as they comply with the requirements established by the Executive Law. This law states that the parole board may consider all statutory elements, the board is not ordered to provide the same articulation or weight to each of them when making a decision. The exception to this is that because of the importance that rehabilitation holds in the parole process, the board is mandated to consider the defendant’s record while incarcerated, release plans, imposed sentence, and other recommendations.

If the parole board only relies on the offense that the offender is incarcerated for and does not take into account the inmate’s behavior, then the parole board is abusing its discretion. This discretionary abuse is evident in the comments made by the board members at the time of denial. They stated that the defendant had shot another man and needlessly taken his life. This would lead a person to question if the parole board was insinuating that they did not believe that a person should be paroled if they have committed a crime such as murder. The court feels that the board would be abusing its privileges to do that. In fact, the Supreme Court Justices stated that if that was the intent of the parole board that it was tantamount to the board resentencing the defendant illegally. To say that a conviction for the crime of murder prevents an inmate from obtaining parole, creates multiple problems that cannot be ignored. At this particular inmate’s hearing it is not questioned that the board was almost entirely focused on the crime and the actions that surrounded the crime. However, when the defendant attempted to explain that at the time of the incident, he had been terrified for his life after the incident that had occurred in 1982.

The defendant stated that given the opportunity, he would never commit another offense. The board only briefly mentioned the defendant’s lack of a criminal history and his accomplishments while he was incarcerated. His achievements were lightly dusted over before the decision was made by the board of pardons and parole. If the board was going to focus such a tremendous interest in the underlying crime as a means to deny parole, the Supreme Court stated that there would have to be aggravating circumstances. There were no aggravating circumstances in this case. The Supreme Court ruled that the defendant was entitled to a new hearing in front of a different panel of judges within 30 days.

At Stephen Bilkis & Associates, criminal lawyers, can be reached in one of several offices located throughout New York and the Metropolitan area, whether you have been charged with a handgun offense, sex crimes or theft.

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