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National Crime Victim Law Institute

Applewhite v. N.Y. State Bd. of Parole, 167 A.D.3d 1380 (N.Y. App. Div. 2018)

January 31, 2019

In 1991, petitioner-defendant was convicted of murder and criminal possession of a weapon and sentenced to 25 years to life in prison.  In 2017, he sought parole for the third time, and the State Board of Parole (Board) denied his request and ordered him held for an additional 24 months.  Petitioner commenced a proceeding under Article 78 of N.Y. Civil Practice Law and Rules challenging the Board’s decision.  The court dismissed the petition and this appeal followed.  On appeal, petitioner argued that the Board’s consideration of “consistent community opposition” to his release was outside the scope of statutory factors the Board is allowed to consider when making parole release decisions.  The court disagreed, reasoning that the statutory list of factors a parole board may consider is not exclusive.  Furthermore, Executive Law § 259-i specifically contemplates community members expressing their opinion to the Board regarding a potential release.  Section 259-i provides that “[w]here a crime victim or victim’s representative…or other person submits…a written statement concerning the release of an inmate, [the Board] shall keep that individual’s name and address confidential[.]”  The court reasoned that this provision clearly demonstrates that the N.Y. Legislature intended that the Board may consider such opinions when deciding on parole release.  “By statutorily protecting the confidentiality of those members of the community—in addition to the crime victim or victim’s representative—who choose to express their opinion, either for or against, an inmate’s bid to obtain parole release, the Legislature demonstrated a clear intent that such opinions are a factor that may be considered by respondent in rendering its ultimate parole release decision.”  The court also found the statements to be germane to the explicit statutory factors, such as whether an inmate’s release will deprecate the seriousness of the underlying crime as to undermine respect for the law.  For these reasons the court upheld the lower court’s dismissal of petitioner’s Article 78 proceeding.