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Parole Board Decides Whether to Grant Discretionary Parole Release


Petitioner GAROFOLO, an inmate in the care and custody of the New York State Department of Correction Services since 1977, is currently incarcerated at Clinton Correctional Facility, Dannemora, New York. He was convicted in 1977 of a sex crime of Rape in the First Degree, Sodomy in the First Degree and Burglary in the Second Degree for his attack on an estranged girlfriend. For these crimes petitioner GAROFOLO received indeterminate concurrent sentences of zero to 25 years each on the rape and sodomy charges and zero to 15 years on the burglary charge. Also, in 1977, New York DWI Lawyer said he was convicted of two counts of Murder in the Second Degree for his killing of Catherine Wilkinson with a police baton. Petitioner GAROFOLO dumped the victim’s body in a wooded area in Suffolk County, near a bar he went to with his victim. For the murder convictions he was sentenced to 25 years to life on each murder count, to be served concurrently with the sex crime of rape, sodomy and burglary sentences.

A New York Criminal Lawyer said that, petitioner GAROFOLO had his initial Parole Board Release interview, which was his earliest possible release date. At that time, he was denied discretionary parole release. Then, he had three subsequent parole release interviews and was denied parole at each interview. GAROFOLO, after parole denial, perfected and filed an administrative appeal which was ultimately denied. After exhausting his administrative remedies he appealed his parole denial by commencing a petition. Petitioner seeks an order, pursuant to Article 78 of the CPLR, vacating the July 6, 2008 decision of the New York State Board of Parole (PAROLE BOARD) denying him parole and granting him either immediate release on parole or a de novo parole hearing. Respondent FELIX ROSA (ROSA), Chairman of the BOARD OF PAROLE, opposes the petition and seeks its dismissal.

Petitioner GAROFOLO contends that he was wrongfully denied a discretionary parole release by respondent PAROLE BOARD. The basis of the instant petition is that respondent PAROLE BOARD acted unlawfully because: the term of Parole Commissioner Jennifer Arena, one of the three Parole Commissioners at the July 8, 2008 hearing, had expired; certain comments of Parole Commissioner James B. Ferguson during petitioner’s hearing demonstrated reliance on matters not within the purview of the PAROLE BOARD; and, the PAROLE BOARD’S denial of parole release was based solely on petitioner’s underlying criminal offenses to the exclusion of all other statutorily mandated factors of consideration, which, pursuant to Matter of Russo v New York State Board of Parole is “irrationality bordering on impropriety.”

ROSA and the PAROLE BOARD assert that the denial of parole to petitioner GAROFOLO was lawful, arguing that: Commissioner Arena could continue to serve as a holdover commissioner; and, the PAROLE BOARD’s determination not to release petitioner GAROFOLO was lawful and should not be set aside.

The issue in this case is whether the Parole Board acted within the law in its denial of the discretionary parole release of petitioner GAROFOLO.

The Court in deciding the case said that, after a review of the record and interview, the panel of the PAROLE BOARD has determined that if released at this time, there is a reasonable probability that petitioner would not live and remain at liberty without again violating the law, and his release would be incompatible with the welfare of society and would so deprecate the serious nature of the crime as to undermine respect for the law. A New York DWI Lawyer said the decision of the PAROLE BOARD was based on the following factors: Your instant offenses, murder in the second degree, two counts, rape first degree, sodomy first degree and burglary second degree, in which you beat to death your teenage girlfriend because she was begging you not to rape her. In a prior offense you broke down the door of your victim and then repeatedly raped and then sodomized her. Note is made of your extensive educational accomplishments, your remorse, impressive disciplinary record and all other required statutory factors. Despite the pleas and cries of your victims, you continued with your horrific crime showing them no mercy. Your brutal offenses have deprived a young teenager of her life and her family has been forever impacted by your heinous crime. Your rape victim has had her life forever scarred. Parole is denied.

The instant petition claims, that contrary to the conclusions reached by the parole board, the record reveals that the petitioner, now fifty-two years old and have spent some thirty-three years behind bars, is obviously a completely different person then when he was first incarcerated, and indications point to someone who is now ready, willing and able to rejoin society as a productive member. However, the Court said that, petitioner has failed to show that the decision of the PAROLE BOARD is arbitrary, capricious, an abuse of discretion or “irrationality bordering on impropriety.”

Petitioner GAROFOLO argues that the presence of “holdover” New York State Parole Commissioner Jennifer Arena, whose term of office had expired prior to petitioner’s July 8, 2008 parole hearing, tainted the hearing decision. However, Public Officer’s Law § 5 states: Every officer, except a judicial officer, a notary public, a commissioner of deeds, and an officer whose terms is fixed by the state constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen until his successor shall be chosen and qualified.

Thus, the Court held that, petitioner’s argument that the PAROLE BOARD or its Commissioners proceeded in excess of its authority or without jurisdiction is wholly without merit. Further, pursuant to Executive Law § 259-b (4), “members of the state board of parole shall not hold any other public office.” Therefore, a Parole Commissioner, who by statute cannot hold office as a judicial officer, or a notary public, or a commissioner of deeds, and is not an officer whose term is fixed by the state constitution, may holdover until a successor takes office. While members of the PAROLE BOARD are not judicial officers, they possess functions which are considered quasi-judicial in nature. It does not necessarily follow that Parole Commissioners are judicial officers. Further, neutrally positioned government officials performing quasi-judicial functions do not attain the status of judicial officers. Thus, Commissioner Arena’s authority to serve as a Parole Commissioner after the expiration of her term appropriately falls within the statutory holdover provision of Public Officer’s Law § 5. Moreover, the Court held that, petitioner’s claim that Commissioner Arena’s holdover status created a conflict of interest and tainted the PAROLE BOARD’s decision is unavailing for lack of any evidentiary support from the record. It is purely speculative and fails as a matter of law.

The standard for judicial review in an Article 78 proceeding is to scrutinize the record and determine whether the decision of the administrative agency is supported by substantial evidence and not arbitrary and capricious. A Nassau County DWI Lawyer said if the reviewing court finds that the agency determination has a rational basis, supported by substantial evidence, such determination must be sustained. It is axiomatic that the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld.

Article 12-B of the Executive Law details the authority and duties of the New York State Division of Parole and PAROLE BOARD. Executive Law § 259-i, “Procedures for the conduct of the work of the state board of parole,” describes, in § 259-i (2) (c) (A), the standards to be considered by the Parole Board in determining if an inmate should be released on parole: Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law. In making the parole release decision the following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release program; (iii) release plans including community resources, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate while in the custody of the department of correctional services . . . (v) any statement made to the board by the crime victim or the victim’s representative, where the crime victim is deceased or is mentally or physically incapacitated. Notwithstanding the provisions of this section, in making the parole release decision for persons whose minimum period of imprisonment was not fixed pursuant to the provisions of subdivision one of this section (inmates like petitioner GAROFALO), in addition to the factors listed in this paragraph the board shall consider the factors listed in paragraph (a) of subdivision one of this section.

The Court held that, the above-mentioned Executive lists the guidelines to be considered by the Parole Board and shall include (i) the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentence probation report as well as consideration of any mitigating and aggravating factors, and activities following arrest and prior to confinement; and (ii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement. Further, § 259-i (1) (a) states that “the notification of the Parole Board’s determination and of any subsequent determinations and of the reasons therefore shall be furnished in writing to the sentenced person and to the person in charge of the institution as soon as practicable. Such reasons shall be given in detail and not in conclusory terms.”

The subject parole hearing minutes demonstrates that the PAROLE BOARD considered the necessary statutory factors in weighing whether to grant discretionary parole release to petitioner GAROFOLO. The PAROLE BOARD discussed with petitioner: his upbringing and family history; the violent nature of the underlying crimes; why he committed his crimes, any mitigating factors, his remorse and his rehabilitative efforts; his support network if released; his educational attainments while incarcerated; his participation in sex offender programs and substance abuse counseling; his disciplinary record; his plans if released for living arrangements and work; and, any matter he thought should be brought to the attention of the PAROLE BOARD. Petitioner GAROFOLO, in support of his request for relief, notes that an inmate’s exemplary conduct during his or her imprisonment may be considered as a relevant factor during his parole hearing.

In view of the foregoing, petitioner GAROFOLO’s claim that he should be released because of his successful efforts at rehabilitation does not pass muster in the face of the statutory framework. Successful rehabilitation effort is but one of the many factors to be considered by the PAROLE BOARD in determining if an inmate is granted discretionary parole release.

Further, petitioner’s GAROFOLO’s denial of parole release due to the severity of his crimes is within the sound discretion of the PAROLE BOARD. The Board’s determination that the petitioner’s positive achievements were outweighed by the serious and repetitive nature of her crimes was within its sound discretion and is not subject to judicial review. Similarly, the Boards based its determination upon the extraordinarily serious and vicious nature of the crimes for which the petitioner was incarcerated, which is sufficient ground to deny parole release.

Therefore, the grounds for parole denial stated by the PAROLE BOARD at petitioner’s hearing are sufficient to support the PAROLE BOARD’s denial of parole to petitioner GAROFOLO. Petitioner GAROFOLO has failed to demonstrate to the Court that the decision of the PAROLE BOARD is arbitrary, capricious, an abuse of discretion or “irrationality bordering on impropriety.” Accordingly, Court denied the instant petition.

If you have been convicted of a sex crime such as rape and have served the minimum years your sentence, you need the advice of a New York Rape Attorney. Stephen Bilkis and Associate’s New York Criminal Attorneys can represent you, and inform you whether you’re eligible for parole.

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