In the Matter of Jorge L. Linares, Appellant,v.Andrea W. Evans,, Respondent.

Brief

N.Y.Sep 8, 2015

APL 2014-00076 Court of Appeals of the State of New York In the Matter of JORGE LINARES, Petitioner-Appellant, -against- ANDREA W. EVANS, CHAIR OF THE NEW YORK STATE BOARD OF PAROLE, Respondent-Respondent. BRIEF FOR RESPONDENT BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General NANCY A. SPIEGEL Senior Assistant Solicitor General KATE H. NEPVEU Assistant Solicitor General of Counsel ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent The Capitol Albany, New York 12224-0341 Telephone No. (518) 776-2016 Facsimile No. (518) 473-8963 Dated: December 22, 2014 Reproduced on Recycled Paper i TABLE OF CONTENTS PAGE 0BTABLE OF AUTHORITIES ...................................................................... ii PRELIMINARY STATEMENT ................................................................. 1 QUESTION PRESENTED ........................................................................ 3 STATEMENT OF THE CASE .................................................................. 4 A. The 2011 Amendments to the Executive Law ........................ 4 B. The Board’s Rulemaking ......................................................... 7 C. Facts and Proceedings Below .................................................. 9 ARGUMENT PETITIONER IS NOT ENTITLED TO THE RELIEF HE SEEKS FROM THIS COURT ........................................................ 11 A. 9 N.Y.C.R.R. § 8002.3 Is, On Its Face, Rational and Not Contrary to Executive Law § 259-c(4). ................................. 12 B. Under the Separation of Powers Doctrine, Petitioner Is Not Entitled to a Judicial Rewriting of a Regulation. .......... 17 CONCLUSION ........................................................................................ 20 ADDENDUM: PRE- AND POST-2011 VERSIONS OF RELEVANT SECTIONS OF EXECUTIVE LAW ARTICLE 12-B .................. Addendum, p. 1 ii 0BTABLE OF AUTHORITIES CASES PAGE Burke’s Auto Body, Inc. v. Ameruso, 113 A.D.2d 198 (1st Dep’t 1985) .................................................... 18 Claim of Gruber, In re, 89 N.Y.2d 225 (1996) ...................................................................... 16 County of Oneida, Matter of v. Berle, 49 N.Y.2d 515 (1980) ...................................................................... 17 Garfield, Matter of v. Evans, 108 A.D.3d 830 (3d Dep’t 2013) .................................................. 9,15 Kuppersmith v. Dowling, 93 N.Y.2d 90 (1999) ........................................................................ 12 Maron, Matter of v. Silver, 14 N.Y.3d 230 (2010) ...................................................................... 17 Montane, Matter of v. Evans, 116 A.D.3d 197 (3d Dep’t), lv. dismissed, 2014 N.Y. LEXIS 3388 (Dec. 16, 2014) ..................................... 7n,16 New York Ass’n of Counties v. Axelrod, 78 N.Y.2d 158 (1991) ...................................................................... 18 People ex rel. Burby v. Howland, 115 N.Y. 270 (1898) ........................................................................ 17 Rocco, Matter of v. Board of Trustees, 98 A.D.2d 609 (1st Dep’t 1983), appeal dismissed, 62 N.Y.2d 803 (1984) ................................................................. 18-19 Tenn. Gas Pipeline Co. v. Urbach, 96 N.Y.2d 124 (2001) ...................................................................... 18 iii Table of Authorities (cont’d) STATE STATUES PAGE C.P.L.R. article 78 ........................................................................................... 1 Correction Law § 71-a ................................................................................................ 8 Executive Law article 12-B ....................................................................................... 4 § 259(4) ........................................................................................... 8n § 259-b(1) ..................................................................................... 4,8n § 259-c ............................................................................................... 5 § 259-c(4)................................................................................. passim § 259-d .............................................................................................. 9 § 259-d(1) .......................................................................................... 4 § 259-i ............................................................................................ 4,6 § 259-i(1) ........................................................................................... 7 § 259-i(2) ......................................................................................... 15 § 259-i(2)(c)(A) ........................................................................ passim § 259-i(2)(c)(A)(i) ............................................................................. 7n § 259-i(2)(c)(A)(i)-(viii) ...................................................................... 8 § 259-i(2)(i)-(viii) ............................................................................. 6n § 259-l(1) ........................................................................................... 4 Penal Law § 70.70 ............................................................................................. 6n § 70.71 ............................................................................................. 6n N.Y. St. Reg., vol. XXXV, issue 51 (Dec. 18, 2013) ................................... 7 N.Y. St. Reg., vol. XXXVI, issue 30 (July 30, 2014) .................................. 8 iv Table of Authorities (cont’d) STATE STATUTES (cont’d) PAGE L. 2011, Ch. 62, § 1, Part C, § 1, subpart A § 1 ................................................................................................. 4 § 38-b ............................................................................................. 1,5 § 38-f-1 ........................................................................................... 6,7 STATE RULES AND REGULATIONS 9 N.Y.C.R.R. § 8001 ................................................................................................ 8 § 8002.1 ............................................................................................. 9 § 8002.3 ................................................................................... passim § 8002.3(a) ........................................................................................ 8 § 8002.3(a)(1)-(12) ........................................................................ 8,13 § 8002.3(a)(11) ........................................................................ 8,13,14 § 8002.3(b)-(c) .............................................................................. 9,14 § 8002.3(d) .............................................................................. 4,11,19 PRELIMINARY STATEMENT Petitioner Jorge Linares brought this C.P.L.R. article 78 proceeding to challenge a determination by the Board of Parole denying him discretionary release. Supreme Court dismissed the petition and petitioner appealed to the Appellate Division, Third Department. With the Board’s acquiescence, the Appellate Division annulled the determination and ordered the Board to provide petitioner with a de novo interview, at which the Board was to consider a risks and needs assessment instrument known as COMPAS.1 Although the petition had been granted without opposition, petitioner moved for leave to appeal, arguing that the Appellate Division should have directed the Board not only to provide a de novo interview, but to promulgate formal regulations implementing the 2011 amendments to Executive Law § 259-c(4) (see 2011 Laws, Ch. 62, § 1, Part C, § 1, subpart A, § 38-b) under which the new interview would take place. This Court granted leave. 1 COMPAS stands for “Correctional Offender Management Profiling for Alternative Sanctions.” 2 Subsequently, the Board chose to implement the 2011 amendments to the Executive Law by promulgating formal regulations. Petitioner nonetheless pursued his appeal in this Court, submitting a brief that argues that the new regulations, which were not even proposed until a year and half after the commencement of this proceeding, do not comply with those amendments and asking this Court to review them as if it were a court of original instance. The Board accordingly moved to dismiss petitioner’s appeal as moot or in the alternative to strike petitioner’s brief and much of his other submissions as beyond the scope of this appeal. By letter dated October 22, 2014, the Court advised the parties that it would decide the motion after briefing and argument of the appeal. The Court should dismiss petitioner’s appeal. As explained in the Board’s motion, which remains before the Court and thus is not restated here, the sole issue on which petitioner based his claim that he remained aggrieved by the order of the Appellate Division is now moot and the issues he raises in his brief are not properly before the Court. Alternatively, the Court should affirm the Appellate Division’s order without modification. Petitioner’s brief appears to claim that the 3 Board’s new regulations are invalid on their face, but they are rational and fully compatible with the text of the statute they implement. Furthermore, the specific relief petitioner seeks would effectively require the Court to rewrite a provision of the regulations governing the content of Board decisions denying parole, without any legal or other principled support. The Appellate Division correctly dealt with the matter before it, and its order should be affirmed. QUESTIONS PRESENTED Petitioner’s brief to this Court does not set forth any question for review.2 Based on the contents of his brief, and setting aside the questions raised separately in the Board’s motion to dismiss, the questions may be stated as follows: 1. Whether petitioner fails to demonstrate that the Board’s new regulations are either so arbitrary or inconsistent with the statute they implement as to be invalid on their face. 2 Since petitioner’s brief does not contain a statement of the question presented, nor a statement showing that the Court has jurisdiction to review the question, it fails to comply with section 500.13(a) of the Court’s rules. 4 2. Whether the specific relief petitioner seeks, which would require the Court to graft a modification onto 9 N.Y.C.R.R. § 8002.3(d) of the Board’s regulations, violates the separation of powers doctrine. STATEMENT OF THE CASE A. The 2011 Amendments to the Executive Law In 2011, the Legislature enacted a budget bill that, among other things, reorganized and consolidated a number of state agencies; as relevant here, it merged the Department of Correctional Services and the Division of Parole into the new Department of Corrections and Community Supervision (DOCCS). See generally 2011 Laws, Ch. 62, § 1, Part C, § 1, subpart A. However, even after the merger, the Board of Parole, its attorneys, and its hearing officers function independently of the rest of DOCCS. Exec. Law §§ 259-b(1), 259-d(1), 259-l(1); see 2011 Laws, Ch. 62, § 1, Part C, § 1, subpart A, § 1, Legislative Intent. The 2011 legislation also made numerous amendments to article 12-B of the Executive Law, which deals with parole. Of interest here are the amendments to Executive Law §§ 259-c(4) and 259-i. For the Court’s convenience, the relevant portions of these statutes, indicating 5 both the pre- and post-amendment versions, are reproduced in an addendum to this brief. Executive Law § 259-c sets forth the powers and duties of the Board. In amending subdivision (4) of that section, the Legislature directed the Board to establish written “procedures,” rather than written “guidelines,” to assist its decision making. 2011 Laws, Ch. 62, § 1, Part C, § 1, subpart A, § 38-b (see Addendum, p. 1). Additionally, while the pre-2011 statute provided that the guidelines “may consider the use of a risk and needs assessment instrument,” the current statute states that the procedures “shall incorporate risk and needs principles to measure [inmates’] rehabilitation . . . and [their] likelihood of success [if released].” Id. Both the old and new statute state that the guidelines/procedures are to “assist the [Board] in determining which inmates may be released to parole supervision.” Id. Executive Law § 259-i(2)(c)(A) sets out the substantive standards the Board is to apply and the specific factors it is to consider in making parole release determinations. These were not changed by the 2011 legislation. Thus, the Executive Law still directs that 6 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. Exec. Law § 259-i(2)(c)(A); see 2011 Laws, Ch. 62, § 1, Part C, § 1, subpart A, § 38-f-1 (leaving this standard unchanged). And the Executive Law still requires the Board to consider the same eight factors in making parole release decisions.3 The only other relevant changes to § 259-i were technical. First, the word “guidelines” was changed to “procedures” in the cross-reference to § 259-c(4). 2011 Laws, Ch. 62, § 1, Part C, § 1, subpart A, § 38-f-1 (see Addendum, p. 2). 3 These are: (1) the inmate’s institutional record; (2) the inmate’s performance, if any, as a participant in a temporary release program; (3) the inmate’s release plans, including community resources, employment, education and training and support services available; (4) any deportation order issued against the inmate; (5) any statement made to the Board by the crime victim or the victim’s representative; (6) the length of the determinate sentence the inmate would have received if sentenced pursuant to Penal Law §§ 70.70 or 70.71 for certain drug offenses; (7) the seriousness of the offense, with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, district attorney, attorney for the inmate, the pre-sentence probation report and other mitigating or aggravating factors; and (8) the inmate’s prior criminal record. See Exec. Law § 259-i(2)(i)-(viii). 7 Second, the repeal of Executive Law § 259-i(1) required moving two of the eight factors that the Board had always been required to consider— seriousness of the offense and prior criminal record—from that now-repealed subdivision and adding them directly to subdivision (2)(c)(2), where they now appear as the seventh and eighth factors listed. 2011 Laws, Ch. 62, § 1, Part C, § 1, subpart A, § 38-f-1 (see Addendum, p. 2).4 B. The Board’s Rulemaking In December 2013, the Board proposed regulations designed, among other things, to memorialize the written procedures it had previously adopted to implement Executive Law § 259-c(4) in a memorandum by the former Chair of the Parole Board, Andrea Evans (see A. 113).5 See N.Y. St. Reg., vol. XXXV, issue 51 at 1 (Dec. 18, 2013).6 4 One existing factor was slightly modified: “the institutional record including . . . interpersonal relationships with staff and inmates” became “interactions with staff and inmates.” Exec. Law § 259-i(2)(c)(A)(i); see 2011 Laws, Ch. 62, § 1, Part C, § 1, subpart A, § 38-f-1 (Addendum, p. 2). 5 In that memorandum, Ms. Evans noted that the Board members had received training in the use of the COMPAS risk and needs assessment instrument. See Matter of Montane v. Evans, 116 A.D.3d 197, 203 (3d Dep’t 2014) (describing Evans memorandum), lv. dismissed, 2014 N.Y. LEXIS 3388 (Dec. 16, 2014). 8 The regulations became effective July 30, 2014. See N.Y. St. Reg., vol. XXXVI, issue 30 at 11 (July 30, 2014). Among other things, the rulemaking repealed 9 N.Y.C.R.R. part 8001 and revised 9 N.Y.C.R.R. § 8002.3, which sets forth the Board’s decision-making procedures for parole release determinations. As revised, 9 N.Y.C.R.R. § 8002.3 implements Executive Law § 259-c(4) by requiring the Board to consider “the most current risk and needs assessment that may have been prepared by” DOCCS. 9 N.Y.C.R.R. § 8002.3(a)(11).7 Section 8002.3(a) also lists the other factors that the Board is required to consider pursuant to Executive Law § 259-i(2)(c)(A)(i)-(viii), and the case plan, or transitional accountability plan, described in Correction Law § 71-a. See 9 N.Y.C.R.R. § 8002.3(a)(1)-(12). The regulation then reiterates that, in all cases, the Board must consider these factors and then apply the statutory standard to determine whether to grant parole. 6 As a consequence of the merger discussed above, the Board is now an independent entity within DOCCS. See Exec. Law §§ 259(4), 259-b(1). Thus, the regulations appear in the State Register as being proposed by DOCCS. 7 As noted above, the COMPAS is one such instrument. 9 See 9 N.Y.C.R.R. § 8002.3(b)-(c) (referring to 9 N.Y.C.R.R. § 8002.1, which mirrors Exec. Law § 259-i(2)(c)(A), except it adds female pronouns). Finally, under § 8002.3(d), if the Board denies parole, it must give the inmate reasons for the denial “in detail and not in conclusory terms.” C. Facts and Proceedings Below The facts and prior proceedings in this case were set forth in detail in the Board’s memorandum of law in support of the pending motion to dismiss the appeal. They are summarized only briefly here for the Court’s convenience. In November 2011, the Board denied petitioner release on parole. He commenced the instant proceeding, claiming that the determination was arbitrary and capricious based on the specific facts of his case. He also claimed that the determination should be annulled because the Board had not considered a COMPAS assessment for him in making its decision. Supreme Court dismissed the petition and petitioner appealed. Before petitioner perfected his appeal, the Appellate Division rendered its decision in Matter of Garfield v. Evans, 108 A.D.3d 830 (3d Dep’t 2013), holding that, after the effective date of the 2011 10 amendments and consistent with the Evans memorandum, the Board was required to consider the COMPAS in making parole release determinations. As a result of this decision, the Board did not oppose petitioner’s appeal and did not file a brief. The Appellate Division thereafter reversed Supreme Court and granted the petition, holding that “[p]etitioner is entitled to a new parole hearing due to the Board’s failure to use a ‘COMPAS Risk and Needs Assessment’ instrument” (A. 3).8 The Appellate Division did not address petitioner’s claim, raised for the first time in his brief, that the Board failed to “establish written procedures for its use in making parole decisions,” as required by Executive Law § 259-c(4), because the Board had not promulgated formal regulations since the 2011 amendments became effective (A. 244-246). Even though petitioner thus prevailed on appeal to the Appellate Division, he nonetheless moved for leave to appeal. In response to the Board’s opposition, petitioner claimed that he remained aggrieved, 8 We are advised that at petitioner’s request, neither his regular parole interview that would have occurred in November 2013 nor the de novo interview ordered by the Appellate Division has taken place. 11 because he was entitled to an order not just directing the Board to conduct a de novo interview, but specifically directing the Board to conduct a de novo interview pursuant to formally promulgated regulations (Petitioner’s Reply at ¶¶ 4-9). And he made this argument, even though he had not requested that relief in his petition or at any time before the Supreme Court, but rather raised the issue for the first time in his brief in the Appellate Division. This Court granted leave (A. 2). ARGUMENT PETITIONER IS NOT ENTITLED TO THE RELIEF HE SEEKS FROM THIS COURT If the Court retains this appeal, it should affirm. Petitioner now challenges the substance of 9 N.Y.C.R.R. § 8002.3 as revised. He argues, in effect, that 9 N.Y.C.R.R. § 8002.3 as revised is invalid on its face because it is necessarily incompatible with Executive Law § 259-c(4). His solution is for this Court to “direct[ ] the Board of Parole to provide detailed reasons for determinations that run counter to COMPAS’ empirically-based results” (Pet. Br. at 41). Even though 9 N.Y.C.R.R. § 8002.3(d) already requires the Board to provide its reasons for parole 12 denials “in detail and not in conclusory terms,” petitioner thus asks this Court to amend that regulation to require even more detail in some circumstances. Petitioner cannot prevail, both because his premise is wrong and because the specific relief he seeks is barred by the separation of powers doctrine. A. 9 N.Y.C.R.R. § 8002.3 Is, On Its Face, Rational And Not Contrary to Executive Law § 259-c(4). “It is well-settled that a State regulation should be upheld if it has a rational basis and is not unreasonable, arbitrary, capricious or contrary to the statute under which it was promulgated.” Kuppersmith v. Dowling, 93 N.Y.2d 90, 96 (1999). Petitioner’s challenge to 9 N.Y.C.R.R. § 8002.3 fails because he cannot establish that that revised regulation “is so lacking in reason for its promulgation that it is essentially arbitrary.” Id. (internal quotation omitted). The Executive Law requires only that the Board “establish written procedures” for its parole decisions that “incorporate risk and needs principles.” Exec. Law § 259-c(4). The revised regulation does just that by directing the Board to consider an inmate’s “most current risk and needs assessment.” 13 9 N.Y.C.R.R. § 8002.3(a)(11). Accordingly, petitioner’s facial challenge to the regulation is without merit. Contrary to petitioner’s argument here, the Executive Law is fully reflected in, and implemented by, the regulation. The Executive Law requires the Board to adopt written procedures for making parole decisions, and the regulation memorializes the Board’s written procedures for making parole decisions. See Exec. Law § 259-c(4); 9 N.Y.C.R.R. § 8002.3. The Executive Law requires that the procedures adopted incorporate risk and needs principles; the regulation requires the Board to consider the most current risk and needs assessment. Exec. Law § 259-c(4); 9 N.Y.C.R.R. § 8002.3(a)(11). The Executive Law requires the Board to consider multiple factors in making a parole release decision; the regulation enumerates those factors. Exec. Law §§ 259-c(4), 259-i(2)(c)(A); 9 N.Y.C.R.R. § 8002.3(a)(1)-(12). The Executive Law requires the Board ultimately to decide whether there is a reasonable probability that a particular inmate will live and remain at liberty without violating the law, and that the inmate’s release will not be incompatible with the welfare of society and will not so deprecate the seriousness of their crimes as to undermine respect for law; the 14 regulation states that all decisions must be made according to those standards. Exec. Law § 259-i(2)(c)(A); 9 N.Y.C.R.R. § 8002.3(b)-(c). There is thus no contradiction between the Executive Law’s mandates and the regulation implementing those mandates, and petitioner’s facial challenge to the regulation fails. Petitioner makes two additional arguments, but both lack merit. First, petitioner claims that one aspect of the revised regulation demonstrates that the entire regulation is incompatible with the Executive Law. 9 N.Y.C.R.R. § 8002.3(a)(11) provides that the Board must consider “the most current risk and needs assessment that may have been prepared by the Department of Corrections and Community Supervision” (emphasis added). Seizing on the “may have been prepared” language, petitioner argues that the regulatory provision fails to assure that the Board will necessarily consider a risk and needs assessment in every case (Br. at 25, 28). But the “may have been prepared” language is no more than an acknowledgment that, in light of the reorganization and merger discussed above, the preparation of risk and needs assessments is the responsibility of DOCCS, not the Board, and the Board has no authority to direct the activities of DOCCS 15 employees. Nevertheless, following the Appellate Division’s decision in Garfield, 108 A.D.3d at 830, DOCCS is well aware of its responsibilities in this regard. Petitioner’s sole textual argument thus lacks any force. Second, petitioner claims that because the Board’s regulation adds “the most current risk and needs assessment that may have been prepared by DOCCS” to the list of statutory factors that the Board is required to consider, see Exec. Law § 259-i(2), the regulation fails, on its face, to comply with the mandate of Executive Law § 259-c(4) to “incorporate risk and needs principles.” For this purpose, petitioner asks the Court to take judicial notice of an array of materials purporting to show that the statutory mandate must, at a minimum, require the Board to recast the entire nature of its decision-making and use its risk assessment instrument as the baseline for all parole decisions (Pet. Br. at 28-35). Petitioner’s argument is misguided. The statute requires the Board to “incorporate risk and needs principles,” but does not further define that phrase. Moreover, because the 2011 amendments were enacted as part of a budget bill, no legislative history explains the meaning of the phrase. The Board must therefore interpret what it means to “incorporate risk and needs principles.” Because the 16 incorporation of risk and needs principles necessarily “involves knowledge and understanding of [the Board’s] underlying operational practices,” In re Claim of Gruber, 89 N.Y.2d 225, 231 (1996), the manner in which it does so is left to the agency’s discretion. To the extent that petitioner attempts to mount a systemic challenge to the Board’s decision-making process in advance of his de novo interview—be it pursuant to the revised regulation or the earlier written procedures, see Matter of Montane v. Evans, 116 A.D.3d 197, 203 (3d Dep’t 2014) (describing prior written procedures), lv. dismissed, 2014 N.Y. LEXIS 3388 (Dec. 16, 2014)—a meaningful response is simply not possible here. As we set forth in our motion to dismiss, this broad attack on the Board’s administrative procedures was not advanced in Supreme Court and is therefore unpreserved for this Court’s review (Memorandum in Support of Respondent’s Motion at 12). Moreover, as a result of the lack of preservation, no record on this claim was developed below. And a challenge to the Board’s implementation of its regulation in petitioner’s individual case would be premature. Because petitioner has declined to reappear before the Board for either the de novo interview ordered by the Appellate Division 17 or his next interview in the normal course, the Board has never considered him for release with the benefit of a COMPAS assessment. Thus, any claim that the Board will not give his COMPAS sufficient weight when it does consider him again is pure speculation. B. Under the Separation of Powers Doctrine, Petitioner Is Not Entitled to a Judicial Rewriting of a Regulation. Even if there were some problem with the Board’s regulations— which there is not—petitioner’s proposed solution would run afoul of the separation of powers doctrine. Thus, he cannot obtain the relief he seeks. “The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions.” Matter of Maron v. Silver, 14 N.Y.3d 230 (2010). This principle, that each branch “should be free from interference, in the discharge of its peculiar duties, by either of the others,” is adhered to “for the preservation of liberty itself.” Matter of County of Oneida v. Berle, 49 N.Y.2d 515, 522 (1980) (quoting People ex rel. Burby v. Howland, 155 N.Y. 270, 282 (1898)). 18 Under these principles, this Court has refused to “rewrite [a] statute and create quasi-judicial tax regulations,” even though the Legislature had explicitly authorized it to do so in a “savings” clause. Tenn. Gas Pipeline Co. v. Urbach, 96 N.Y.2d 124, 134 (2001). Similarly, when this Court has found that a regulation is irrational and contrary to statute, it has not chosen from a range of policy solutions to make the regulation comply with the statute. Instead, it has nullified the offending regulation, which left the administrative agency free to take whatever action it saw fit in light of the Court’s decision. See, e.g., New York State Ass’n of Counties v. Axelrod, 78 N.Y.2d 158, 169 (1991) (declaring regulation “null and void” because it lacked a rational basis); see also Burke’s Auto Body, Inc. v. Ameruso, 113 A.D.2d 198, 201 (1st Dep’t 1985) (holding that courts “may not usurp the administrative function by directing the agency to proceed in a specific manner, which is within the jurisdiction and discretion of the administrative body in the first instance”); Matter of Rocco v. Board of Trustees, 98 A.D.2d 609, 610 (1st Dep’t 1983) (“The courts are not given original jurisdiction to direct the manner in which an administrative agency shall perform its 19 functions.”) (emphasis in original), appeal dismissed, 62 N.Y.2d 803 (1984). Petitioner asks this Court to rewrite 9 N.Y.C.R.R. § 8002.3 by “directing the Board of Parole to provide detailed reasons for determinations that run counter to COMPAS’ empirically-based results” (Pet. Br. at 41). What petitioner means by this or how it could be implemented is unclear, because by regulation the Board is already required to provide detailed reasons for all decisions denying parole. See 9 N.Y.C.R.R. § 8002.3(d) (requiring Board to explain a parole denial “in detail and not in conclusory terms”). But it would be inappropriate in any event for the Court to order such relief. The order of the Appellate Division should be affirmed for the reasons stated. 20 CONCLUSION The Court should dismiss this appeal for the reasons stated in respondent’s motion to dismiss. Alternatively, the Court should affirm the order of the Appellate Division and the matter should be remitted to the agency for a de novo interview under the currently applicable provisions of the Executive Law and title 9 of the New York Codes, Rules, and Regulations. Dated: Albany, New York December 22, 2014 BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General NANCY A. SPIEGEL Senior Assistant Solicitor General KATE H. NEPVEU Assistant Solicitor General of Counsel Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Respondent By: _____________________________ KATE H. NEPVEU Assistant Solicitor General Office of the Attorney General The Capitol Albany, New York 12224 Telephone (518) 776-2016 Reproduced on Recycled Paper Addendum, p. 1 ADDENDUM: PRE- AND POST-2011 VERSIONS OF RELEVANT SECTIONS OF EXECUTIVE LAW ARTICLE 12-B (Deletions are shown in brackets; additions are underlined.) Executive Law § 259-c. State board of parole; functions, powers and duties. The state board of parole shall: . . . 4. establish written [guidelines] procedures for its use in making parole decisions as required by law [including the fixing of minimum periods of imprisonment or ranges thereof for different categories of offenders]. Such written [guidelines may consider the use of a] procedures shall incorporate risk and needs [assessment instrument] principles to measure the rehabilitation of persons appearing before the board, the likelihood of success of such persons upon release, and assist members of the state board of parole in determining which inmates may be released to parole supervision; Executive Law § 259-i. Procedures for the conduct of the work of the state board of parole. [1. Relating to the board’s setting of minimum periods of imprisonment in certain cases: repealed.] 2. Parole. . . . (c)(A) Discretionary release on parole shall not be granted merely as a reward for good conduct or Addendum, p. 2 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.9 In making the parole release decision, the [guidelines] procedures adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article shall require that 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] interactions 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] and any recommendation regarding deportation made by the commissioner of the department [of correctional services] pursuant to section one hundred forty-seven of the correction law; (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; [and] (vi) the length of the determinate sentence to which the inmate would be subject had he or she received a sentence pursuant to section 70.70 or section 70.71 of the penal 9 Because of the length of this paragraph, line breaks have been added between sentences to improve its readability. Addendum, p. 3 law for a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law; (vii) 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 prior to confinement; and (viii) prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement.10 . . . [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, 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.] 10 Subsections (vii) and (viii) of Executive Law § 259-i(2)(C)(A) are not new factors, but were previously located in the now-repealed § 259-i(1).