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DM appealed the denial with an assigned counsel

On 2 September 1998, a first meeting was had between CI and JC. However, CI postponed the transaction. Thus, on 3 September 1998, a second meeting was had and it was where CI met with DM on a Queens Street. DM then told CI to come to his house but CI refused and the two then walked on where they met up with JC who was driving a Maxima. DM allegedly said that the $2M was in the rear seat of this car and both DM and JC asked the “seller”, CI, to enter the vehicle to check out the money. CI refused to do so. DM then removed a suitcase (contents unknown) from the rear seat and placed it in the trunk. Again, CI was asked to inspect the money which was allegedly in the suitcase. At that point, DM and JC each held a semi-automatic handgun, each defendant pulled back the slide of his handgun in order to load a bullet into the chamber, and each defendant then pressed the nuzzle of his handgun against the rib area of the CI, and DM stated, in substance, “Get in the car, or I’ll put one in your side.”
Detective JL, who was in charge of the operation recovered a loaded semi-automatic handgun from the ground where he saw DM throw it and other members of his team recovered a similar weapon from the trunk of the car, which had remained open, where they saw JC throw it.
DM and JC were arrested and charged with Attempted Criminal Possession of Drugs in the First Degree, Kidnapping in the Second Degree, Criminal Possession of a Weapon (a loaded firearm) and Attempted Robbery in the First Degree. DM was held without bail and was later indicted for these crimes.

Under the three-page complaint sworn to by Detective JL, DM and JC negotiated to buy $2M worth of cocaine from CI (unnamed in the complaint but appears to be either a confidential informant or an undercover police officer). These negotiations took place over several days at different diners in Queens. The plan was to exchange cars first and then CI was to place the cocaine in JC’s car while they were to put $2M into CI’s car. On 2 September 1998, this exchange of cars didn’t occur. The following day, the re-exchange was supposed to occur but this never happened because of the fact that it was a sting set up by the Authorities. The “seller”, CI, never had the cocaine and the buyers, DM and his co-defendant JC, never had any money which was clear after they were arrested.

On 16 March 1999, DM entered into a plea of guilty to Criminal Possession of Drugs in the Second Degree, a Class A Felony, and to the weapons charge, pursuant to a plea bargain wherein the judge promised to sentence him to 9 years to life on the drug charge and 5 years as a definite term on the Gun Charge, to run concurrently. On 20 April 1999, DM was sentenced as promised.

On 21 April 2009, DM appeared before the Parole Board. This was his second appearance before a Board and by a vote of 2-1, parole was denied and DM was told to reappear in 24 months.

The denial by the Parole Board was predicated on the following factors: seriousness of the instant crimes together with an earlier history of a Kidnapping and a deportation, followed by an illegal re-entry, showing “a well-established pattern of criminal behavior” and the Board’s determination that, since there was “a reasonable probability that DM would not live at liberty without violating the law, his release at that time was incompatible with the welfare and safety of the community.”

DM appealed the denial with an assigned criminal counsel. However, the appeals unit never acted on it, despite a letter from him asking for its status.

Thus, since DM had no response neither to his appeal nor to his letter, he petitioned the Court via an Article 78 proceeding.

The Article 78 proceeding:

Certain facts must be assumed. There was, in all probability, no cocaine; no money received or vouchered; and, two guns recovered.

Based on the actual events that led to the arrest, there clearly was an attempted robbery with the guns. However, the crime of Kidnapping is hard to discern. While one could fathom why Attempted Possession of Drugs was charged, it is more difficult to understand why DM pled guilty to actual Possession of drugs. This issue, in fact, briefly arose during the plea process.

Here, the facts reflect the lack of care, as well as other omissions and mistakes, made by the Parole Board.

According to the respondent Parole Board, its decisions are discretionary, and as long as they are exercised within statutory requirements, they must be respected and not subject to judicial review.

Here, such statutory requirements were not, in fact, met. Nor did the majority of members of the Board carefully and accurately review the relevant material. This is evidenced by what was said during the proceedings themselves and in the decision.

At the hearing, DM was incorrectly told that he was charged with having been involved with 500 pounds of cocaine, and having attempted to kidnap, murder or rob someone. Despite DM answering through an interpreter that such was so, there was never anything about the 500 pounds of marijuana in the papers and he was never charged with trying to murder anyone. As to the cocaine, he was charged with attempted possession of an amount in excess of 4 oz. He pled guilty to possession of 2 oz. But, as noted, he was never actually within the vicinity of any cocaine. Moreover, the questioning of DM by Commissioner S about his intent to sell the alleged drugs was improper as there was never such a charge made against him.

Here, it is obvious that Commissioner S concocted a scenario with his own version of the facts and much of it was simply false. There was nothing about $10 million or attempting to kill anyone. Again, it must be noted that this was a sting operation successfully concluded with the arrest of DM and JC; no money was recovered, no cocaine was ever said to be present, and no one was hurt.

Needless to say, what’s even more important here was the Board’s complete failure to consider, in violation of Executive Law §259-i subd. 2(c)(A)(iv), DM’s deportation status.
Assuming that DM’s testimony was accurate concerning the 5 years and 11 months additional federal sentence facing him upon release which the Board could have easily verified, the Board’s denial of DM’s parole on its belief that he “would not live at liberty without violating the law” and that his release was “incompatible with the welfare and safety of the community” is not only wrong but it has absolutely no basis in fact. Rather, the release of DM would lead to almost 6 more years in a federal prison and then a deportation to his home country.

Pursuant to Executive Law §259-i, the Board must consider relevant factors and the degree of weight to be given to each of these factors is largely within their discretion, but the statutory factors must also be considered. In other words, while the Parole Board indeed has discretionary powers in making its decisions to which judicial deference must be given, the Board must still rely on an accurate set of facts and properly apply the law.

Here, they did not.

In the case of Samuel v. Alexander, 69 AD3d 861 (2nd Dep’t 2010), the Court affirmed the denial of parole but found that the Parole Board did consider the relevant factors, including the fact that the inmate was subject to a final order of deportation issued by a federal immigration judge.

In the case of Abbas v. New York State Div. of Parole, 61 AD3d 1228(3* Dep’t 2009), the Court affirmed the Board’s denial of parole finding that although the Board’s determination did not specifically make reference to the deportation order, the Board was aware of its existence.
Here, the Board was “plainly aware” of the additional 5 years and 11 months of time DM had to serve in federal prison after his release. Despite this knowledge, the Board did not only fail to allude to it in its decision, it also suggested that it was imprudent to release him into the community. Such conclusion was plainly wrong and made no sense in light of the information presented.

Certainly, the Board has the right and obligation to consider the severity of the crime. However, it cannot distort the fact that an individual was actually convicted under the circumstances. There was never an Attempted Murder Charge and it was never even referred to. While there was a legitimate Attempted Robbery Charge, there was no ten million dollars of cocaine and no 500 pounds was ever involved. This was a sting operation with guys who pretended to be big shots but ultimately were just out to rob. The Board seemed to have believed the sting part of the tale rather than its reality.

In the case of Lewis v, Travis, 9 AD3d 800, (3rd Dep’t 2004), the court reversed the Board’s denial of parole and remanded the matter when it noted that the Board placed particular emphasis on the offense committed. In that case, the Board incorrectly referred to petitioner’s conviction as murder in the first degree, when, in fact, it was murder in the second degree. Inasmuch as the Board relied on incorrect information in denying petitioner’s request for parole release, the judgment was reversed and a new hearing granted.

Reversals of denials are proper when the criminal petitioner could show the likelihood that the Board relied on incorrect information.

Here, a reversal and remand is necessary. The Board, in its decision, did not consider DM’s deportation order or federal sentence and it also improperly relied on incorrect information as to the underlying acts as a predicate to his conviction. Henceforth, DM is entitled to a new hearing as soon as possible, especially because significant delay has already occurred due to respondent Board’s failure to act on his administrative appeal or respond to his letter in that regard. Heroine was not found.

Accordingly, the petition was granted; the 27 April 2009 decision by the Division of Parole denying parole to DM was vacated and the matter was remanded for a new parole hearing consistent with the terms of the decision.

Court proceedings are strenuous realities that no one has ever really prepared for. It is hard for someone who has no legal background to understand but it is much harder for those who have no idea, at all, of what they’ve involved themselves with just like the one mentioned in the above discussed case. Nonetheless, fear not. You’re not alone. Contact Stephen Bilkis & Associates and we will assist you with your legal concerns. Speak with the best of the best Queens County Criminal Attorneys like Queens County Drug Crime Attorneys or Queens County Possession of a Weapon Attorneys. Call us at our toll free number or visit any of our offices located throughout the State of New York.

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