In the Matter of Pablo Costello, Appellant,v.New York State Board of Parole et al., Respondents.BriefN.Y.June 5, 2014 To be argued by: Nancy A. Spiegel Time Requested: 10 Minutes Supreme Court, Albany County – Index No. 6880-11 Court of Appeals of the State of New York IN THE MATTER OF THE APPLICATION OF PABLO COSTELLO, Petitioner-Appellant, FOR JUDGMENT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE LAW AND RULES. -against- NEW YORK STATE BOARD OF PAROLE, Respondent-Respondent. BRIEF AND APPENDIX FOR RESPONDENT BARBARA D. UNDERWOOD Solicitor General ANDREA OSER Deputy Solicitor General NANCY A. SPIEGEL Senior 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 (518) 474-3197 Dated: January 2, 2014 Reproduced on Recycled Paper i TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ...................................................................... ii PRELIMINARY STATEMENT ..................................................................1 QUESTION PRESENTED .........................................................................3 STATUTORY AND REGULATORY BACKGROUND .............................3 STATEMENT OF THE CASE ...................................................................9 A. Factual Background ...................................................................9 B. The Parole Release Decision ................................................... 11 C. The Temporary Suspension of Release and Victim Impact Statements ............................................................................... 14 D. The Rescission Hearing ........................................................... 21 THE ADMINISTRATIVE DETERMINATION ...................................... 27 THE ARTICLE 78 PROCEEDING ......................................................... 28 THE DECISION BELOW........................................................................ 28 ii TABLE OF CONTENTS (cont’d) PAGE ARGUMENT BECAUSE THE FINAL DETERMINATION BY THE PAROLE BOARD TO RESCIND PETITIONER’S PAROLE WAS REASONABLE AND MADE IN ACCORDANCE WITH THE REGULATIONS, IT WAS PROPERLY SUSTAINED BY THE APPELLATE DIVISION ............................................................... 32 A. The Standard of Judicial Review is Rationality ...... 33 B. The Board’s Determination Was Properly Sustained Under the Rationality Standard ..................................................................... 37 C. Petitioner’s Concerns About Potential Outside Influence And Perceived Deficiencies In The Notification Of Crime Victims Do Not Warrant A Contrary Result. ......................................................................... 42 CONCLUSION ..................................................................................... 46 APPENDIX ..................................................................................... A1 iii TABLE OF AUTHORITIES PAGE CASES Barna v. Travis, 239 F.3d 169 (2d Cir. 2001) ...................................................................4 Council of the City of New York v. Public Service Commission, 99 N.Y.2d 64 (2002) ............................................................................ 34 Diaz, Matter of v. Evans, 90 A.D.3d 1371 (3d Dep’t 2011) .......................................................... 36 Elcor Health Services, Matter of v. Novello, 100 N.Y.2d 273 (2003) .................................................................. 33, 41 Green v. McCall, 822 F.2d 284 (2d Cir. 1987) ............................................................... 4-5 Jago v. Van Curen, 454 U.S. 14 (1981) ..................................................................................4 Ortiz, Matter of v. N.Y.S. Bd. of Parole, 239 A.D.2d 52 (4th Dep’t 1998) ........................................................... 36 Pugh, Matter of v. New York State Board of Parole, 19 A.D.3d 991 (3d Dep’t), lv. denied, 5 N.Y.3d 713 (2005) ... 28, 36, 38 Silmon, Matter of v. Travis, 95 N.Y.2d 470 (2000) ...................................................................... 4, 37 STATE STATUTES Criminal Procedure Law § 440.50 ........................................................................................ passim iv C.P.L.R. article 78 ....................................................................................... passim § 7803(4) .............................................................................................. 36 § 7804(g) .............................................................................................. 36 Executive Law Article 23 ............................................................................................. 29 § 259-i(2) .................................................................................................4 § 259-i(2)(c)(A)(v) ............................................................................. 8, 29 1985 N.Y. Laws ch. 78 ......................................................................... 8, 43 1998 N.Y. Laws ch. 367 ........................................................................... 40 2005 N.Y. Laws ch 186, § 3 ........................................................................9 RULES AND REGULATIONS 9 N.Y.C.R.R. Part 8006 ................................................................................................8 § 8002.4 ..................................................................................................8 § 8002.5(b) ..............................................................................................6 § 8002.5(b)(2) ....................................................................................... 14 § 8002.5(b)(2)(i) ............................................................................. 34, 35 § 8002.5(b)(3) ................................................................................... 6, 34 § 8002.5(b)(4) ..........................................................................................6 § 8002.5(b)(4)(iii) ....................................................................................6 § 8002.5(b)(5)(iii)(c) ........................................................................... 6, 7 § 8002.5(d) ......................................................................................... 7, 8 § 8002.5(d)(1) ........................................................................... 33, 34, 35 MISCELLANEOUS 1998 N.Y. Leg. Ann. at 219 ..................................................................... 40 PRELIMINARY STATEMENT Petitioner Pablo Costello is serving a sentence of 25 years to life for the felony murder of a police officer who was killed by petitioner’s accomplice during the course of a botched robbery. The police officer had a wife and four children. By law, his family had the right to submit victim impact statements to the Parole Board every time petitioner came up for parole consideration, and the Board was required to take their statements into account in making its parole release determinations. Through no fault of the family or the Board, the Board had no victim impact statements in August 2009 when, by a 2-1 vote, it granted petitioner an open parole date. Its decision was reported by the press and, perhaps as result of that press coverage and/or efforts by the police officers’ union, the family became aware of the Board’s action and asked to be heard, as is its right. Pursuant to the Board’s regulations, petitioner’s scheduled release date was temporarily suspended while victim impact statements were taken. Ultimately, after considering the statements and affording petitioner a hearing, the Board rescinded its prior 2 determination and denied parole. The underlying proceeding pursuant to C.P.L.R. Article 78 challenges the Board’s rescission determination. As we explain below, that determination is subject to rational basis review. Because the proceeding appeared to raise a substantial evidence question, however, it was transferred to the Appellate Division for initial disposition. The Appellate Division, with one justice dissenting, confirmed the determination and dismissed the petition on the ground that there was “substantial evidence of significant information” that was not previously before the Board, namely, the victim impact statements. The dissenting justice characterized the family members’ recent statements of their ongoing grief as “undeniably compelling, indeed heartbreaking.” He nonetheless concluded the statements should not have triggered rescission proceedings, let alone led to the rescission of petitioner’s parole, because they were not unanticipated or unusual for a surviving family. Petitioner now appeals by permission of this Court. 3 It is regrettable that the Board did not have the family’s victim impact statements before it when it considered petitioner for parole in August 2009. But given the importance the Legislature has attached to the right of victims to be heard, the Board would have been remiss if it had refused to allow family members to speak and to consider what they had to say. And while the system for assuring that crime victims receive timely notice of their right to address the Parole Board may be imperfect, it is not the victims who should bear the consequences for any systemic deficiencies. QUESTION PRESENTED Whether the Parole Board rationally determined to rescind petitioner’s open date for parole release after a hearing at which it considered, among other things, numerous victim impact statements not previously before it. STATUTORY AND REGULATORY BACKGROUND The Executive Law commits responsibility for determining the suitability for parole release of prisoners who are serving 4 indeterminate sentences to the discretion of the Parole Board. Executive Law § 259-i(2); see Matter of Silmon v. Travis, 95 N.Y.2d 470 (2000); see also Barna v. Travis, 239 F.3d 169 (2d Cir. 2001) (prisoners in New York have no liberty interest in parole release). When the Parole Board renders a determination to release a prisoner, the prisoner is not released immediately. Rather, the Board fixes what is known as an “open release date” some weeks in the future. The intervening period enables parole officials to plan for the prisoner’s release, including arranging any special conditions of release and assuring the adequacy of housing and availability of any relevant treatment programs. The United States Supreme Court has held that where a prisoner has been granted discretionary parole, but has not yet reached his scheduled release date, the authority of parole officials to reconsider a release decision does not implicate a liberty interest, unless the agency’s authority is limited by statute or regulation. Jago v. Van Curen, 454 U.S. 14 (1981); see also Green v. McCall, 822 F.2d 284 (2d Cir. 1987) (finding liberty interest 5 where United States Parole Commission had limited its rescission authority by regulation). In New York, there is no statutory limitation on the Parole Board’s authority to reconsider a release decision prior to the prisoner’s scheduled release date. In its discretion, however, the Parole Board has prescribed a regulatory process for the reconsideration of a parole release date. Any limitation on the Parole Board’s discretionary authority to rescind parole thus derives from the Board’s own regulations. The Board’s regulations provide, in pertinent part: (1) Whenever it shall come to the attention of the senior parole officer or the parole officer in charge of an institutional parole office that there may be a basis for board reconsideration of a parole release date, said officer may temporarily suspend the inmate's release date. (2) Events which may cause the temporary suspension and rescission of a parole release date shall include, but not be limited to: (i) significant information which existed, or significant misbehavior which occurred prior to the rendition of the parole release decision, where such information was not known by the board; or (ii) case developments which occur subsequent to the board’s rendition of its decision to grant release . . . . 6 9 N.Y.C.R.R. § 8002.5(b). If a prisoner’s scheduled release date has been temporarily suspended pursuant to this regulation, the parole officer is required to notify the prisoner as soon as practicable in writing of the suspension. Id. § 8002.5(b)(3). The parole officer must thereafter commence an investigation, prepare a rescission report delineating the results of that investigation, and submit the report to a member of the Parole Board “as soon as practicable.” Id. The Parole Board member must then order one of three things, only two of which are relevant here: “(i) that the inmate be held for a rescission hearing; or (ii) that the inmate’s release date be reinstated.” Id. § 8002.5(b)(4). 1 If the Parole Board member orders a rescission hearing, the prisoner is given at least seven days’ notice of the date scheduled for the rescission hearing, and of his rights at the hearing, which include the right to be represented by 1 The third kind of order that a Board member may render is relevant only in cases involving the imposition of an additional indeterminate sentence or a resentence. See 9 N.Y.C.R.R. § 8002.5(b)(4)(iii). 7 counsel, to appear and speak on his own behalf, to present witnesses and documentary evidence, and in most cases to confront and cross-examine witnesses.2 The disposition of a rescission hearing is governed by 9 N.Y.C.R.R. § 8002.5(d), which provides: (1) If a majority of the members of the Board of Parole conducting the rescission hearing are satisfied that substantial evidence was presented at the hearing to form a basis for rescinding the grant of release, they shall so find. In such cases, the majority of the members may: (i) rescind the inmate's release date and set a new date for further release consideration not more than 24 months from the date of the original release interview; or (ii) rescind the inmate's original release date and set a new release date. (2) If a majority of the members of the board conducting the hearing are not satisfied that substantial evidence exists to form a basis for rescinding the grant of release, the board shall cancel the suspension and reinstate the inmate's original release date or, if that date has past, release shall occur as soon thereafter as is practicable. 2 A prisoner may have no right to confront and cross-examine witnesses where he has been convicted of a crime for which an additional sentence has been imposed or a majority of the members of the Parole Board conducting the hearing find good cause for the nonattendance of a witness. See 9 N.Y.C.R.R. § 8002.5(b)(5)(iii)(c). 8 Id. § 8002.5(d) (emphasis added). An inmate has a right to administratively appeal any determination rescinding parole in accordance with 9 N.Y.C.R.R. Part 8006. Since 1985, the victim of a crime (or where the victim is deceased or incapacitated, the victim’s representative) has had the right to submit a victim impact statement to the Parole Board, and the Board has been required to take any such statement into account in making its parole release determinations. See 1985 N.Y. Laws ch. 78 (codified at Executive Law § 259-i(2)(c)(A)(v)). C.P.L. § 440.50 generally governs notice to crime victims by district attorneys of the final disposition of a criminal case. When the Legislature amended the Executive Law in 1985, it also amended C.P.L. § 440.50 to expand the notice provided to include notice of the victim’s right to submit a written victim impact statement to the Parole Board. See 1985 N.Y. Laws ch. 78 (codified at C.P.L. § 440.50); see also 9 N.Y.C.R.R. § 8002.4 (describing current procedures for making victim impact statements). It was not until 2005, however, that C.P.L. § 440.50 9 imposed an obligation upon district attorneys to provide the notice described by that provision in all cases in which the final disposition included a conviction of a violent felony offense. See 2005 N.Y. Laws ch. 186, § 3. Before that, district attorneys were required to provide notice under C.P.L. § 440.50 in all cases only upon a crime victim’s request. STATEMENT OF THE CASE A. Factual Background On May 16, 1980, following a jury verdict, petitioner was sentenced in Supreme Court, Kings County, to concurrent terms of 25 years to life for one count of murder in the second degree, 8 and 1/3 years to 25 years for two counts of robbery in the first degree, and 5 to 15 years for one count of criminal possession of a weapon in the second degree (A38, A55).3 Petitioner’s murder conviction stems from an incident on December 28, 1978 at an auto supply store in Brooklyn. At about 3 Parenthetical references preceded by “A” are to petitioner’s appendix. The appendix page numbers are those appearing at the top of each page. (The page numbers at the lower right-hand corner appear to be the page numbers from the Record on Appeal that was submitted to the Appellate Division.) 10 2:00 p.m., petitioner and his accomplice, Luis Torres, entered the store with the intention of committing a robbery. Armed with a handgun, Torres ordered the owner and the customer then in the store to go to the back and lay face down behind a counter. The men took cash from the register and ordered the owner and the customer to hand over their money and valuables. Thereafter, petitioner exited the store, leaving Torres and the victims alone. Meanwhile, at about 2:10 p.m., two New York City police officers were on routine patrol when they noticed a vehicle double- parked near the store. While his partner remained in the patrol car, Police Officer David Guttenberg entered the store to find the owner of the double-parked vehicle and have him move it away from the busy intersection. The partner observed a man, later identified as petitioner, exit the store, get into the double-parked car, and drive away from the scene. The owner and the customer, who were still behind the counter, heard an exchange of words between Torres and Officer Guttenberg, followed by three gunshots and the sound of someone exiting the store. Officer 11 Guttenberg sustained three bullet wounds to the chest and was pronounced dead approximately one hour later. On December 31, 1978, Torres was taken into custody, gave a full confession and identified petitioner as his accomplice. A few days later, petitioner turned himself in. (Answer, Exhibit B [presentence investigation report, submitted in camera]; A57.)4 B. The Parole Release Decision On August 18, 2009, petitioner made his fourth appearance before the Board for parole release consideration (A61-A80). In his interview, he stated that at the time of the crime, he was an irresponsible 22-year-old who squandered a second chance after a prior youthful offender adjudication and went along with Torres to act as the lookout during the robbery (A65, A69). He said that although he fled the scene before the shooting occurred, he accepted responsibility and expressed deep remorse for his acts and for the pain and suffering he caused to the police officer’s family as well as his own family (A65-A66). The Board noted that petitioner was already outside the store as Officer Guttenberg 4 Also submitted for in camera review is Exhibit E to the answer, which is the confidential portion of the Inmate Status Report prepared in 2009. 12 approached (A72). Petitioner explained that he was terrified of any confrontation, and acknowledged that it was unfortunate that he had not diverted the officer from the scene (A73). Addressing his disciplinary history, petitioner maintained that a disciplinary violation for harassment that he received in 2004 was fabricated by a correction officer who took a dislike to him after learning that petitioner had enrolled in the sex offender program (A66-A67). Petitioner explained that he enrolled in the sex offender program because he was issued a ticket in 2000 for lewd conduct, which he attributed to his difficulty in adjusting to being separated from his wife (A67-A68). Petitioner listed his achievements while in prison, including his two-year Associates Degree from Dutchess Community College, his twelve credits in various courses taught through Cornell University, his Department of Labor certificate as a counseling aide in the area of post-release services, his HIV/AIDS awareness peer leadership training sponsored by the New York State AIDS Institute, his four published articles on genealogy, his completion of the custodial maintenance program, his current 13 programming in the industrial metal furniture shop, and his skills learned in production assembly, upholstery, fabric cutting, and machine cutting (A70-A71). Petitioner asked the Board to consider the many supportive letters it had received from his wife, daughter, other relatives, and professors with whom he had studied (A75-A76). He also noted that he had received assurances of employment from two organizations (A76-A77). The Board informed petitioner that it had received a letter the previous month from the Commissioner of the New York City Police Department and that the file contained a 1992 letter from the Kings County District Attorney, both of which strongly opposed petitioner’s release on parole (A66). No other opposition was discussed during the hearing, and there were no victim impact statements before the Board. On August 24, 2009, and by a 2-1 vote, the Board granted petitioner an open date of September 29, 2009 for parole release. Commissioners Grant and Hernandez concurred; Commissioner Smith dissented (A81, 83). 14 C. Temporary Suspension of Release and Victim Impact Statements After the Board’s decision became public and was reported in the press, Officer Guttenberg’s widow contacted what was then the Division of Parole’s Victim Impact Unit5 and requested the opportunity to provide a victim impact statement (A229-A230; Respondent’s Appendix6). To accommodate Mrs. Guttenberg’s request, on September 25, 2009, petitioner’s facility parole officer notified petitioner that his open date for parole release date was being temporarily suspended (A86). The notice advised that petitioner’s open release date was being temporarily suspended for the purpose of “records completion” (A86).7 5 After the 2011 merger of the Division of Parole and the Department of Correctional Services into the Department of Corrections and Community Supervision (“DOCCS”), the duties of the Division’s Victim Impact Unit were transferred to DOCCS’s Office of Victim Services. 6 Respondent’s appendix contains the rescission report, dated November 24, 2009, which was submitted with respondent’s answer as Exhibit Q, but omitted from petitioner’s appendix. 7 The parole officer did not check the box indicating that parole was being suspended on the basis of “[i]nformation which existed . . . but was not known at the time the Board rendered the decision” (A86). Suspension for the purpose of records completion falls within the open-ended “shall include, but not be limited to” language of 9 N.Y.C.R.R. § 8002.5(b)(2). 15 Shortly thereafter, members of the Parole Board held separate meetings with Mrs. Guttenberg and other members of the family to provide them an opportunity to give victim impact statements. Family members were advised that, as a condition to taking their statements, they would be required to waive the confidentiality to which their statements would normally be entitled and, indeed, that their statements would be transcribed and provided to petitioner and his attorney (A90, A98-A99, A131- A132). At three meetings held via teleconference on October 2 (A88-96) and October 9, 2009 (A97-A128, A129-142), Mrs. Guttenberg and five other family members provided victim impact statements, largely reading from prepared statements of their own as well as those of other family members who could not attend the meetings. In the end, statements (either written or oral) were taken from Officer Guttenberg’s widow, all four of his children, five grandchildren, and a brother-in-law. The written statements (A143-A183) were entered into the record. Collectively, they detail the ongoing grief and devastation suffered by the family from the violent and untimely loss of Officer Guttenberg. 16 Barbara Guttenberg told the Board that the loss of her husband at the age of 49 had left her alone, after 24 years of marriage, to raise and provide for their four children and to assume the roles of both mother and father. David was a devoted husband and father and was always ready to help anyone with anything they needed. Mrs. Guttenberg explained that David’s absence from all their children’s graduations, birthdays, and weddings greatly saddened all of these joyous occasions and milestones, and that the family is still acutely grieving his loss. He never had a chance to meet his seven grandchildren. Mrs. Guttenberg asked the Board not to let petitioner return to his family when David will never be able to do so (A91-A94, A175-A177). Amy Guttenberg- Windor, Ilene Guttenberg-Triestman, and Helaine Guttenberg- Ginsberg, the daughters of David Guttenberg, and Mark Guttenberg, David Guttenberg’s son, all underscored their mother’s expressions of continuing grief. Amy Guttenberg-Windor stated that she has not been able to pick up the pieces and go about her life and, when she sees her 17 father’s features and facial expressions in her children, she relives the trauma of that fateful day and the ensuing events, including the swarms of people around her apartment building the day he was murdered, the inspector’s funeral he was given, and the anguish they went through when her mother returned home from every grueling day of the two criminal trials (A133-A136). She questioned the sincerity of petitioner’s remorse given that he never reached out to family in over 30 years (A135). She concluded by stating that the Guttenberg family did not know until recently about the registration program (maintained by the Victim Impact Unit) and that family members now were registered and looked forward to participating each time petitioner appeared before the Board (A140). Ilene Guttenberg-Triestman, was engaged to be married at the time of her father’s death. Although he looked forward to the event, her mother had to walk her down the aisle alone. She stated that she was deprived of her father’s love, support and guidance when her husband, Gary, suffered a traumatic brain injury from a serious car accident 14 years ago. Because Gary has 18 resided in a long-term care nursing facility since that time, her son, David, who was seven years old at the time of his father’s accident, grew up without either a father or a grandfather. Not a day goes by that she doesn’t think about her father and wish that she could see him, talk to him, or tell him that she loves him (A106-A108, A153). Helaine Guttenberg-Ginsberg stated that her father was an honest, hard-working man who loved to spend time with his family and work on projects with her brother. She expressed the grief she felt from her father’s absence from family occasions and the fact that he never got to see his grandchildren. Ms. Guttenberg-Ginsberg noted that petitioner was well aware that weapons were being used during the robbery and that someone could get killed (A114-A120, A145-A147). Ms. Guttenberg-Ginsberg read a statement written by her brother, Mark Guttenberg (A120-A123, A143-A144). Mark had a close relationship with his father. They would go fishing together, play catch with a baseball or a football, and attend Mets and Yankees baseball games. His father was very handy and taught 19 him to fix things around the house. At the age of 14, Mark had to become the man of the house, and had to learn on his own many things that a father would normally teach a son. Although his mother did a great job raising the children by herself, he knows it was very painful for her and the entire family. Not a day goes by that he doesn’t think of how important his father was to him and the rest of the family and how life would be very different if he were still here. The statements from grandsons Zachary Guttenberg-Windor (A137-A138) and David Triestman (A101-A104, A148-A149), and from granddaughters Staci Triestman (A105-A106, A150), M G (A110-A112), and H G (A112-A114, A182), all expressed their sense of loss from never having met their grandfather. H G noted that because both of her grandfathers died before she was born, she never had the opportunity to experience anything a grandfather gets to do with a granddaughter (A112). David and Staci Triestman grew up with no adult male figure in their lives because of the auto accident 20 their father was involved in when David was seven years old (A101-A102, A148). Ms. Guttenberg-Triestman read a statement from her uncle, Jules Ginsberg, the husband of Officer Guttenberg’s sister, since deceased, and thus brother-in-law to both Officer Guttenberg and Officer Guttenberg’s brother, Rabbi Jack Guttenberg (A108-A109, A151). Mr. Ginsberg stated that Rabbi Jack was so upset by his brother’s murder that he died two weeks later of a massive heart attack. He also stated that his own wife, Officer Guttenberg’s sister, never got over her brother’s murder and died a few years later. Officer Guttenberg’s children noted that because of their father’s kind nature, he walked into an armed robbery and ended up with three bullets in his chest, all because he did not want to burden someone with a parking ticket during the holiday season. They questioned why one of the persons responsible for their father’s death may get the chance to walk free when their father never had a second chance. They questioned why petitioner should be allowed to live the rest of his life with his family when 21 their father could not do so, especially when petitioner has never expressed remorse to them in over 30 years. D. The Rescission Hearing After reviewing these submissions, on November 18, 2009 Commissioner Hernandez, a member of the Parole Board and one of the two members who had voted to grant petitioner parole release, ordered a rescission hearing (A184). She subsequently explained that she had ordered a rescission hearing because she believed the submissions were compelling and that both the panel and petitioner should hear them (A239). Petitioner was thereafter served with a Notice of Rescission Hearing, scheduled for December 3, 2009 (A185). After several adjournments, most at petitioner’s request, the hearing was finally convened on October 28, 2010 before Commissioners Evans, Smith and Hernandez.8 At the opening of the hearing, Commissioner Hernandez explained why the hearing was being held and informed petitioner 8 We are advised that rescission hearings are held before the same Parole Board members who participated in the initial parole release decision. Here, however, Chairwoman Evans replaced Commissioner Grant because, by the time of the rescission hearing, Commissioner Grant was no longer a member of the Board. 22 that following the hearing, the Board could reinstate his open release or deny him parole and order him held for up to 24 months for his next reappearance (A188-A189). Commissioner Hernandez also confirmed that petitioner and his attorneys had received the victim impact statements (A191-A192). Finally, Commissioner Hernandez explained that the original panel that interviewed petitioner in August 2009 had no victim impact statements before it and that she had convened the rescission hearing to consider the victim impact statements that had been newly provided to the Board (A193). At the outset, petitioner’s counsel acknowledged the tragedy of Officer Guttenberg’s murder (A193-A195). Nevertheless, counsel argued that the Guttenberg family’s statements did not provide a basis for rescission because the devastating and multigenerational consequences of this crime would have been understood by the Board when it granted parole and thus, these statements did not constitute significant new information (A196- A198). 23 Petitioner’s counsel also sought to show that the original determination to release petitioner should not be rescinded. He pointed to petitioner’s expressions of remorse to the Board and his record of achievements and rehabilitation during his many years of incarceration (A198-A200). He called as a witness Professor Winthrop Wetherbee, an emeritus professor at Cornell University, who offered a positive opinion of petitioner’s character (A200- A205), and read a letter into the record from a colleague at Cornell, Professor Mary Fainsod Katzenstein, who agreed with his assessment (A206-A210). Petitioner’s counsel read a letter of support from the Deacon of Catholic Services at Great Meadow Correctional Facility, attesting to his regular attendance at church services and participation in a bible study group, where he was a positive influence on other inmates. The Deacon recommended that parole be reinstated because petitioner is rehabilitated, remorseful for his crime, and has the necessary skills and strong family and community support network to successfully reintegrate back into society. (A213-A215.) 24 Petitioner’s wife and daughter testified that despite his incarceration, petitioner has maintained his family ties and been a supportive husband and father. His wife, Evelyn Arocho, believes that petitioner is now a mature adult who loves his family and is ready to be a law-abiding, productive member of society. She is proud of petitioner’s accomplishments while incarcerated, and believes he deserves a second chance to be integrated back into our society (A216-A219). His daughter, Tina Costello, testified that her father has always maintained contact with her throughout his incarceration and that he always kept a positive outlook, sent her gifts, and gave her great advice over the phone. She believes that her father has paid his debt to society and demonstrated that he has made himself a better person (A220- A222). Finally, petitioner addressed the Board himself. He reviewed his programming and educational accomplishments while in prison, including earning a two-year college degree from Dutchess Community College in liberal arts and humanities, 12 credits from Cornell University, a two-year journalism 25 workshop at Cornell University, certification from the New York State Department of Labor as a counseling aide, and HIV/AIDS Awareness Prevention Peer Leadership Training from New York State PACE Institute (A223-A224). He was a peer counselor at several facilities, a senior peer counselor at another facility, and was selected for acting resident director several times prior to being certified by the Department of Labor as a counseling aide (A224). Petitioner stated that he had written four published articles on family genealogy and hoped to have another one published in the near future. As a result of his publications, he has been befriended by professors, historians, and genealogists with whom he has corresponded. He stated that has 17 years of practical experience in the field of genealogy and would like to start a website business offering genealogical services and has professors, genealogists and historians who are willing to support such an endeavor (A225-A226). Petitioner and his counsel reiterated that if released, he would live with his wife and that he would pursue HIV/AIDS peer 26 counseling, for which he has a certificate from the Department of Labor (A228). He also has letters of assurance from the Osborne Association, Exodus Transitional Community, the Fortune Society and Turning Point, a social work organization based in Brooklyn sponsored by the Division of Parole and the Department of Labor (A228- A229). In response to Commissioner Hernandez, petitioner stated he had read the victim impact statements and that, as a father and a husband, he was able to feel in a more personal way the effect and impact that his crime had on the family and that he prays that they will be able to forgive him someday (A231). Before the hearing adjourned, both Commissioners Hernandez and Smith addressed some of the questions petitioner’s counsel had raised regarding the rescission process, including his claim that the hearing was the result of outside interference (A237-A240). Both commissioners pointed out that political and public pressure is par for the course and “[n]o one ever likes Parole commissioners and no one is ever happy” (A239). The commissioners assured petitioner that they would make their decision carefully to the best of their ability. 27 THE ADMINISTRATIVE DETERMINATION The Board unanimously rescinded petitioner’s release date and imposed a hold of 24 months, explaining: New and substantial information was made available to the NYS Board of Parole that was not available during the inmate’s reappearance for parole release consideration in August 2009. It is the unanimous decision of this panel that such information would have resulted in a 24- month hold if available at the August 2009 reappearance. This new information consisted of compelling statements made by the victim’s family. Counsel for Mr. Costello made an argument that these factors could have been extrapolated from documents available at sentencing including the presentence report. However, the loss and anguish during the course of 31 years was apparent in the victim impact submission. In addition, the testimony provided by Ms. Arocho and especially Ms. Costello demonstrates the significance and ongoing impact of the instant offense. To release Pablo Costello would so deprecate the serious nature of the instant offense as to undermine respect for the law. Parole is therefore denied. (A244-A245, A247.) Following petitioner’s administrative appeal, the Board’s decision was affirmed on July 14, 2011 (A251). 28 THE ARTICLE 78 PROCEEDING Petitioner commenced this proceeding in Supreme Court, Albany County, arguing that the determination rescinding his parole release was not supported by substantial evidence (A14- A19). Following service of respondent’s answer (A32-A37),9 the proceeding was transferred for initial disposition to the Appellate Division, Third Department, because it appeared to raise a substantial evidence question (A11-A12). THE DECISION BELOW The Appellate Division, with one justice dissenting, confirmed the determination and dismissed the petition. First, quoting from its earlier decision in Matter of Pugh v. New York State Board of Parole, 19 A.D.3d 991 (3d Dep’t), lv. denied, 5 N.Y.3d 713 (2005), the court stated that “the Board’s broad discretion to rescind parole was limited only by the requirement 9 Prior to answering, respondent moved to dismiss the petition as moot in light of petitioner’s August 2011 reappearance before the Board for parole consideration (A20-A24). The court denied the motion, finding that if it annulled the rescission determination, the relief would be reinstatement of the open release date, not a new parole interview. Accordingly, petitioner’s reappearance before the Board did not moot his challenge to the parole rescission determination (A29-A30). 29 that there be substantial evidence of significant information not previously known by the Board” (A4). Turning to the question whether victim impact statements can meet that standard, the court observed that “[t]here has been a growing awareness over the last several decades of the importance of keeping crime victims apprised and permitting their input,” citing as an example Executive Law Article 23 (“Fair treatment standards for crime victims”), and pointed out that victim impact statements are among “the statutorily required considerations for parole release” in the Executive Law (A5). See Exec. Law § 259-i(2)(c)(A)(v). Against this backdrop, the court concluded that: [V]ictim impact statements can constitute significant information which, when submitted to the Board even after its determination, may justify the temporary suspension or rescission of parole. (A5) (internal quotations and citations omitted). The court specifically rejected the claim that victim impact statements are necessarily not new information because the Board must know that the families continue to suffer: 30 Where victims have not previously submitted statements, the “argument that these statements are not new information because [the Board] could anticipate the impact of the crimes on the victims is without merit, as their actual subjective experience is clearly significant information previously unknown to [the Board]” (Matter of Raheem v New York State Bd. of Parole, 66 AD3d at 1272). (A5.) With respect to the victim impact statements submitted here, the court observed that “[t]he victims’ voices had been virtually unheard before October 2009,” and that no victim impact statements had been available at petitioner’s August 2009 parole appearance or his three prior appearances before the Board. The court stated that the brief description in the pre-sentence report prepared in 1980 of the writer’s interview with Mrs. Guttenberg about her husband does not render superfluous victim impact statements made some thirty years later from Mrs. Guttenberg herself as well as her children and other family members. The 2009 victim impact statements set forth directly for the first time the many different and devastating impacts suffered by the family, some of which remain ongoing. The court thus concluded 31 that the Board did not err in determining that the significant and new information provided by the victim impact statements justified the determination to rescind petitioner’s parole. (A5-6.) The dissenting justice stated that in his view, the statements of the ongoing grief of the officer’s family, while “undeniably compelling, indeed heartbreaking,” are not “new” information that was “unknown” to the Board at the time it granted parole (A8). The dissenter noted that the victim’s wife had been interviewed prior to sentencing and that her ongoing loss and grief and that of the children and other family members “cannot be said to have been unknown, unanticipated or, unfortunately, unusual for a surviving family” (A8). Thus, while the family’s “ ‘actual subjective experience is clearly significant’ ” and an appropriate factor for the Board to consider, “it was not unknown and it should not have been considered as—and did not constitute—information that was not previously known so as to upend the grant of parole” (A8). Animating the dissenter’s analysis was the purported existence of what he described as the “troubling practice followed 32 here of failing to notify a deceased victim’s family of an inmate’s appearance before the Board,” and then allowing victim impact statements after parole has been granted (A9). Further, the justice cautioned this “could become a trend in the parole process in which certain victim impact statements are held back until after a decision to grant parole is made”—he didn’t specify who he thought would engage in this practice or why—thus “forcing the Board to confront unabashed media frenzy, public pressure and familial outrage” and then entertain belated victim impact statements aimed at undoing the granting of parole (A9). ARGUMENT BECAUSE THE FINAL DETERMINATION BY THE PAROLE BOARD TO RESCIND PETITIONER’S PAROLE WAS REASONABLE AND MADE IN ACCORDANCE WITH THE REGULATIONS, IT WAS PROPERLY SUSTAINED BY THE APPELLATE DIVISION After affording petitioner the full hearing to which the Board’s regulations entitled him, the Board unanimously held that the victim impact statements constituted substantial information that “would have resulted in a 24-month hold if available at the August 2009 reappearance” and that “[t]o release 33 [petitioner] would so deprecate the serious nature of the instant offense as to undermine respect for the law” (A244, A247). The compelling nature of the statements themselves supports the Board’s view. The Appellate Division thus properly sustained the Board’s rescission determination, and its judgment should be affirmed. A. The Standard Of Judicial Review Is Rationality. By its own regulations, the Board may rescind parole if, after a hearing, a majority of the Board members finds that “substantial evidence was presented at the hearing to form a basis for rescinding the grant of release.” 9 N.Y.C.R.R. § 8002.5(d)(1). While the regulations provide no further guidance as to the meaning of this phrase, the Board interprets the phrase to mean substantial or significant information that was not previously known by the Board, and that would have resulted in a parole denial if it had been considered by the Board in the first instance. See A247. Because the Board’s interpretation is reasonable, it is entitled to deference. Matter of Elcor Health Services v. Novello, 34 100 N.Y.2d 273 (2003); Council of the City of New York v. Public Service Commission, 99 N.Y.2d 64 (2002). It is similar to—but somewhat broader than—one of the non-exclusive bases set forth in the regulations for temporarily suspending a scheduled release date for purposes of commencing an investigation, namely “significant information which existed . . . prior to the rendition of the parole release decision, where such information was not known by the board.” 9 N.Y.C.R.R. § 8002.5(b)(2)(i). The rescission standard does not include the requirement that the information be something that previously existed, and thereby reasonably permits consideration of information obtained in the ensuing investigation that is expressly contemplated by the regulations. See id. § 8002.5(b)(3). Thus as long as the information is both substantial (i.e., significant) and, for whatever reason, not previously known, it can constitute “substantial evidence . . . to form a basis for rescinding the grant of release.” Id. § 8002.5(d)(1). In his brief to the Court, petitioner asserts that the Board’s regulations impose two separate requirements on a decision to 35 rescind parole. He asserts that the Board must find both “significant information which existed . . . . prior to . . . [the] release decision, where such information was not known by the Board,” and also “substantial evidence . . . . to form a basis for rescinding the grant of release.” Petr. Br. at 24 (quoting 9 N.Y.C.R.R. §§ 8002.5(b)(2)(i), (d)(1)). This is incorrect. As demonstrated here, the former requirement is simply one of several non-exclusive bases for temporarily suspending a parole release date and thereafter commencing an investigation. The regulations impose only a single requirement for rendering a disposition to rescind parole, and that is the language that appears in 9 N.Y.C.R.R. § 8002.5(d)(1), which the Board has reasonably interpreted as herein described. When the Board renders a determination that significant information not previously known warrants the rescission of parole, its determination is reviewable in a C.P.L.R. Article 78 proceeding for rationality. It is true that in this case and the handful of other article 78 proceedings challenging rescission determinations rendered by the Board, the lower courts 36 transferred the proceedings to the Appellate Division for initial disposition pursuant to C.P.L.R. § 7804(g). See, e.g., Matter of Diaz v. Evans, 90 A.D.3d 1371 (3d Dep’t 2011); Matter of Pugh v. N.Y.S. Bd. of Parole, 19 A.D.3d 991 (3d Dep’t 2005); Matter of Ortiz v. N.Y.S. Bd. of Parole, 239 A.D.2d 52 (4th Dep’t 1998). While rescission determinations are made after a hearing held “pursuant to direction by law,” C.P.L.R. § 7803(4), namely the Board’s regulations, those determinations are not adjudications based on specific factfinding, such as findings of guilt in prison disciplinary proceedings, that are reviewable for substantial evidence. Rather, a determination by the Board that the newly presented information would have led to a different result had it been before the Board in the first instance—and thus warrants rescission—involves an exercise of discretion. Put another way, a rescission hearing culminates in a discretionary determination that supersedes an earlier discretionary determination. While such a determination may not be subject to a standard of review as deferential as the standard of “irrationality bordering on impropriety” to which initial determinations denying parole are 37 subject, Matter of Silmon v. Travis, 95 N.Y.2d 470, 476 (2000), it nonetheless should be reviewed for rationality. B. The Board’s Determination Was Properly Sustained Under The Rationality Standard. Applying that standard here, the Board reasonably determined that the victim impact statements constituted information that was not previously before it and was sufficiently significant to warrant the rescission of petitioner’s parole. Although the Appellate Division stated it was reviewing the Board’s determination under the substantial evidence standard, its judgment sustaining that determination was proper under the rationality standard and should therefore be affirmed. The Board’s reliance on the victim impact statements here to rescind petitioner’s parole release was entirely reasonable. None of the Guttenberg family members who provided statements to the Board had ever done so before. Very little of the information contained in those statements was available elsewhere, such as in the sentencing minutes (A40-A55) or the presentence report (Exhibit B in camera). All that was known at the time of the trial was that Officer Guttenberg’s widow was left to raise four children 38 alone and that his brother died two weeks later of a massive heart attack. The Board was not previously provided with any direct evidence of the personal, subjective and continuing feelings of the Guttenberg family members or any evidence of the long-term impacts of petitioner’s crime upon them. See Matter of Pugh, 19 A.D.3d at 993 (“children’s statements describing the impact of this crime—and petitioner’s remorselessness—upon them, and their personal, subjective feelings in reaction to it, constitute significant information which they had not previously communicated to the Board”). Thus, the Board’s unanimous conclusion that the victim impact statements “would have resulted in a 24-month hold if available at the August 2009 reappearance” and that “[t]o release [petitioner] would so deprecate the serious nature of the instant offense as to undermine respect for the law” (A244, A247) is rational and supported by the record. In urging this Court to hold otherwise, petitioner does not suggest that victim impact statements can never constitute significant information upon which a determination to rescind 39 parole may be based. Indeed, he concedes that they may (Br. at 25-26). Petitioner’s primary argument is that the victim impact statements provided by the Guttenberg family members do not provide a basis for rescission because the normal, heartfelt expressions of grief of a murder victim’s family are not new, but rather are inferable generally or from facts included in the presentence report and thus would have been understood by the Board when it made the release decision. This argument is wrong for three reasons. First, the victim impact statements ultimately provided in this case do not simply express the kind of ongoing grief that would have been inferable by the Board at the time of its initial determination. For example, absent these statements, the Board would not have known that petitioner never reached out to the family directly to express any remorse. Nor would the Board have known that the family of Officer Guttenberg’s daughter Ilene suffered a particularly severe loss because Ilene’s husband had become permanently and severely disabled from a car accident, 40 leaving that family especially in need of emotional support from Officer Guttenberg as a second father figure. Second, petitioner’s argument ignores the importance the Legislature has specifically placed on allowing crime victims to be heard in the parole process. As the Assembly sponsor stated in connection with one of two 1998 amendments to C.P.L. § 440.50, both of which further enhanced the opportunity for victim input, “The in-person statement by the crime victim will aid the Board members in determining the true seriousness of the inmate’s crime and the continuing effect it has had on society.” Sponsor’s Mem. in Support, Bill Jacket, 1998 N.Y. Laws ch. 367, reprinted in 1998 N.Y. Leg. Ann. at 219. This is exactly what the statements here enabled the Board to appreciate more fully. Thus while it may have been inferable that Officer Guttenberg’s widow had been forced to finish raising children on her own and that Officer Gutttenberg had been unable to celebrate family milestones and occasions, the manner in which that loss would actually be experienced by the family going forward would not have been known. Although petitioner’s brief 41 seeks to be respectful of the grief of the Guttenberg family, his claim that this information adds nothing to what was already known by the Board at the time it granted petitioner—by rare split decision—an open release date in August 2009 necessarily discounts the value of their first-person accounts. Third, petitioner’s argument effectively asks the Court to substitute his interpretation of the Board’s regulations for the reasonable one that the Board has adopted. He argues (Br. at 3) that “significant new” information sufficient to warrant parole rescission must mean information that is different in kind or degree from what the Board might have been able to infer. Petitioner’s restrictive interpretation of the Board’s own regulations ignores the deference due to the Board’s interpretation. Matter of Elcor Health Services v. Novello, 100 N.Y.2d 273 (2003). To the extent petitioner seeks to advocate for a different rescission standard, his argument is misdirected. It is a policy proposal, and should be directed either to the Legislature or, because this is a regulatory program, to the Board itself. 42 C. Petitioner’s Concerns About Potential Outside Influence And Perceived Deficiencies In The Notification Of Crime Victims Do Not Warrant A Contrary Result. Petitioner raises two additional matters that warrant response. First, he makes the suggestion, to which the members of the Board take great exception, that the rescission process is easily corrupted by outside forces. Petitioner writes that “powerful critics of the Parole Board, employing distortion and intimidation, . . . orchestrate[d] the rescission of petitioner’s parole release” (Br. at 44). This is both offensive and untrue. As Commissioners Smith and Hernandez emphasized at the rescission hearing, outside pressure is not unusual and the commissioners discharge their difficult duties to the best of their ability regardless. Moreover, if the tabloid press engages in irresponsible and inaccurate reporting and unfair editorializing, there is nothing this Court can do about it. Nor can the activities of advocacy groups such as the Patrolmen’s Benevolent Association be circumscribed. For crime victims who have never had the opportunity to exercise their right to address the Board, what prompted them to come forward is simply irrelevant. 43 Ultimately, every decision of the Board must stand or fall on its own merits. Second, petitioner and the dissenter below point to this case as an illustration of the limitations of the system for notifying victims of their right to address the Board when the prisoner comes up for parole. While the system is by no means foolproof, the criticism is both misguided and too harsh. The dissenter appears to have assumed that district attorneys do not always comply with the notice obligations imposed by C.P.L. § 440.50. That may be true, but there could have been no dereliction of duty on the part of the district attorney in this case. Until 1985, and thus at the time petitioner was convicted in 1980, the Executive Law did not provide any opportunity for crime victim input into the parole release process. See 1985 N.Y. Laws ch. 78 and supra at 7-8 (discussing amendments). Consequently, it was not until that year that C.P.L. § 440.50 was amended to require district attorneys to include in any notices provided pursuant to that section information about the victim’s right to communicate with the 44 Board. Thus, the Guttenberg family could not have been notified in 1980 of a right it did not yet have. As set forth above, the victim right provisions have been steadily enhanced over the years, but it was not until 2005 that a district attorney would have had the obligation upon the final disposition of a criminal case to notify a family in the Guttenbergs’ situation of the right to be heard in the parole process. Even with the notice that is now required by C.P.L. § 440.50, it remains the case that in order to receive notice of a prisoner’s impending Parole Board appearance, victims must register with the Office of Victim Services (formerly the Victim Impact Unit). Because the operations of the Office of Victim Services were never the subject of this proceeding, the record does not reflect the substantial outreach efforts the Office makes—to the district attorneys, victim support groups and others—to find and inform victims of their rights and encourage them to register. We are advised that the Office offers many avenues for registration, including on-line, and maintains a toll-free telephone number. In addition, victims who do register are reminded that they must 45 keep the Office apprised of their current address in order to receive notices of upcoming parole appearances. No one would dispute that it would be far better for victim impact statements to be submitted in advance of a prisoner’s appearance before the Board, but this will not always happen. Despite the most conscientious efforts of both district attorneys and DOCCS’ Office of Victim Services, rescission proceedings will occasionally need to be convened to allow victims to be heard in accordance with the clear legislative intent. This circumstance should not be used to deny the Parole Board the authority to give victim impact statements full consideration and weight, as the Legislature has directed.
