In the Matter of Pablo Costello, Appellant,v.New York State Board of Parole et al., Respondents.BriefN.Y.June 5, 2014Albany County Index No. 6880-11 ~fa±£ of ~£fn lJork Oiourl of ~pp£als In the Matter of Pablo Costello, Appellant, -against- New York State Board of Parole, Respondent. Reply Brief for Petitioner-Appellant APL-2013-00236 Dated: January 16,2014 Alfred O'Connor, Esq. Counsel of Record New York State Defenders Association 194 Washington A venue Suite 500 Albany, NY 12210 (518) 465-3524 Norman P. Effman, Esq. Executive Director Wyoming County-Attica Legal Aid Bureau Wyoming County Public Defender 18 Linwood A venue Warsaw, NY 14569 (585) 786-8450 Attorneys for Petitioner- Appellant TABLE OF CONTENTS Page TABLE OF AUTHORITIES ............................................................................................... .i ARGUMENT Respondent does not fully endorse the lower court's "actual subjective experience" definition of significant new information but offers no alternative one. Instead, respondent now claims the standard of judicial review here is rationality, not substantial evidence and urges confirmation on that limited basis alone. But respondent requested the Appellate Division to review the rescission determination under the substantial evidence standard and so cannot now complain this was error. In any event, the rescission determination is plainly subject to substantial evidence review, and respondent fails to argue- even in the alternative- that the evidence was sufficient to justify rescission under the proper standard of review. (Replying to Respondent's Br. Points A, Band C) ................................................................................. 1 CONCLUSION .................................................................................................................... 8 TABLE OF AUTHORITIES Matter ofElcor Health Services v. Novello, 100 N.Y.2d 273 (2003) ..................................... 6 Matter of Ortiz v. NYS Board of Parole, 239 A.D.2d 52 (4th Dept. 1998) .......................... 1 Niatter of Stoker v. Tarentino, 64 N.Y.2d 994 (1985) ............................................................... 4 Statutes and Regulations C.P.L.R. § 7804 (g) ...................................................................................................................... 4 7 NYCRR § 720.3 (b)(S) .............................................................................................................. 3 9 NYCRR § 8002.5 ................................................................................................................... 4, 5 9 NYCRR § 8002.5(d)(1) ............................................................................................................. 5 i ARGUMENT Respondent does not fully endorse the lower court's "actual subjective experience" definition of significant new information but offers no alternative one. Instead, respondent now claims the standard of judicial review here is rationality, not substantial evidence and urges confirmation on that limited basis alone. But respondent requested the Appellate Division to review the rescission determination under the substantial evidence standard and so cannot now complain this was error. In any event, the rescission determination is plainly subject to substantial evidence review, and respondent fails to argue- even in the alternative- that the evidence was sufficient to justify rescission under the proper standard of review. (Replying to Respondent's Br. Points A, Band C) The primary issue in this appeal is whether the belated victim impact statements constituted significant new information to justify rescission of petitioner's parole release. Citing Matter of Ortiz v. NYS Board of Parole, 239 A.D.2d 52 (4th Dept. 1998), petitioner defines significant new information as "information of a kind or degree that could not reasonably have been anticipated or foreseen by the parole- granting panel" (Pet. Br. at 27). The majority below rejected this definition, holding instead that a belated victim impact statement provides significant new information when it describes the "actual subjective experience" of a crime victim. Because all victim impact statements fall into this category, as a practical matter the Third Department's approach would authorize the Board to rescind parole whenever it accepts a belated victim impact statement. 1 In its brief to this Court, respondent does not offer a full-throated endorsement of the Third Department's "actual subjective experience" standard. Nor does respondent propose an alternative working definition of "significant new information." Instead, improperly changing its legal position midstream, respondent now argues the standard of review here is lower than it previously thought. The controlling standard is not substantial evidence review, respondent now contends, but rationality review and the rescission determination should be confirmed on that limited basis alone. On the merits, respondent concedes that the "ongoing grief' and much of what the Guttenberg family members expressed in their victim impact statements "may have been inferable" (Respondent's Br. at 39, 40). But respondent argues the parole-granting panel could not have known about two discrete facts included in the victim impact statements. First, respondent claims that absent the belated victim impact statements "the Board would not have known that petitioner never reached out to the family directly to express any remorse" (Resp. Br. at 39). This is plainly wrong. The parole-granting panel would have known petitioner had not contacted the Guttenberg family because prison correspondence rules prohibit inmates from contacting the victims of their 2 crimes. See 7 NYCRR § 720.3 (b)(5). 1 Second, respondent argues the parole-granting panel could not have known that David Guttenberg's daughter, Ilene Treistman, suffered a tragedy in 1995 when her husband was seriously disabled in a car accident, "leaving that family especially in need of emotional support from Officer Guttenberg as a second father figure" for their son (Resp. Br. at 39-40). Certainly, petitioner should be held accountable for the harm caused by his 1978 crime of conviction. But he cannot in fairness be held responsible for the completely unrelated misfortune that befell one of David Guttenberg's children- a car accident that occurred seventeen years later. This circumstance was not mentioned in the rescission panel's determination, and this post-hoc justification for the parole rescission is too strained and tenuous even under the rationality standard that respondent now incorrectly insists controls here. In any event, the rescission determination is subject to substantial evidence review, not rationality review. Respondent notes that "in this case and the handful of other article 78 proceedings challenging rescission determinations ... the lower courts 1 The regulation prohibits inmates from corresponding with victims without authorization from the superintendent. Counsel was informed by Janet Koupash, director of the Office of Victim Services within the New York State Department of Corrections and Community Supervision, that prison superintendents do not authorize inmates to correspond with victims for the purpose of issuing an apology. The Office of Victim Services maintains a little-publicized "apology bank repositoty," whereby an inmate can submit a letter of apology to the Office, which then retains it on file without notifying the victim. Only when a victim initiates contact with the Office of Victim Services to inquire about an inmate does the Office disclose the existence of an apology letter on file. This is the exclusive means by which inmates can issue apologies to victims outside the indirect context of expressing remorse at parole release interviews. The Office of Victim Services has not produced any literature describing or publicizing the "apology bank repositoty" program. 3 transferred the proceedings to the Appellate Division for initial disposition pursuant to C.P.L.R. § 7804 (g)" (Resp. Br. at 35-36) (i.e., "whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction of law is, on the entire record, supported by substantial evidence"). Respondent now contends these transfers were erroneous. What respondent fails to mention is that this Article 78 proceeding was transferred to the Appellate Division pursuant to C.P.L.R. § 7804 (g) on respondent's own motion.2 Having conceded the rescission determination is subject to substantial evidence review, respondent cannot be heard to complain a lower standard of review actually applies here. See Matter of Stoker v. Tarentino, 64 N.Y.2d 994, 997 fn. (1985) ("The argument in point III of respondent's brief that the proper test is rational basis rather than substantial evidence because the hearing was not held pursuant to a direction of law was not raised below and, therefore, is not considered by us.") But even if respondent had not conceded the issue below, the rescission determination was "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law" and is therefore subject to substantial evidence review. See 9 NYCRR §8002.5. The belated victim impact statements were formally introduced into evidence at the rescission hearing (A-193) and petitioner called 2 See paragraphs 5 and 6 of respondent's Answer (A-33). The Supreme Court, Albany County (NfcDonough, J.) transferred this case to the Appellate Division for review pursuant to CPLR § 7804 (g) "upon motion of Eric T. Schneiderman, Attorney General of the State of New York" (A-12). 4 witnesses. It doesn't matter that petitioner's counsel and the Division of Parole's representative chose not to exercise the right of cross-examination afforded at the hearing. Unchallenged evidence is still evidence. Moreover, the regulation itself states that substantial evidence is required to rescind parole. 9 NYCRR 8002.5(d)(1). Thus, respondent's position below was correct: the rescission determination is subject to substantial evidence review. Respondent's conspicuous failure to now argue, even in the alternative, that the determination is supported by substantial evidence should be viewed as a tacit concession the rescission is not confirmable under the proper standard of review.3 3 Likewise without merit is respondent's argument that the "significant new information" requirement applies only to the initial decision to temporarily suspend an inmate's parole release date and has no bearing on the final rescission determination (Respondent's Br. at 35). The regulation provides that the significant new information requirement applies to both phases of the rescission process: § 8002.5 Rescission (a) After an inmate has received a parole release date, situations may arise which would cause the boatd to reconsider its decision to grant parole release. The pt:ocess for reconsideration of a pamle release date shall be governed by the procedure outlined in this section. (b) Rescission procedure. (1) Whenever it shall come to the attention of the senior parole officer or the parole officer in charge of an institutional parole office tl1at 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 occuned prior to the rendition of the parole release decision, where such information was not lmown by the board ... (d) Disposition. (1) If a majority of the members of the Board of Parole conducting the rescission hearing are satisfied that substantial evidence was presented at tl1e hearing to form a basis for rescinding the grant of release, they shall so find (emphasis added). 5 Citing Matter ofElcor Health Services v. Novello, 100 N.Y.2d 273 (2003), respondent argues this Court must defer to the "reasonable [interpretation of the regulation] the Board has adopted" (Resp. Br. at 41). But the Board has never adopted a formal or even informal interpretation of the language of the rescission regulation. The "actual subjective experience" definition emanated from Article 78 litigation in the Third Department, not from any administrative interpretation by the Board. Furthermore, because respondent does not appear to fully embrace the Third Department's definition, it remains unclear what "interpretation" respondent is asking this Court to defer to. And in any event, for all the reasons stated in petitioner's main brief, the "actual subjective experience" standard is unreasonable and unworkable. Finally, petitioner agrees with respondent that, despite the best efforts of all concerned, some crime victims will learn of their right to submit a victim impact statement only after an inmate has been granted parole (Resp. Br. at 45). This circumstance underscores the need for a meaningful definition of "significant new information," one that offers the Board guidance about when belated victim impact statements warrant temporary suspension or rescission of an inmate's parole release and when they do not. The "actual subjective experience" standard fails to achieve this basic goal, and consequently could discourage the Board from accepting late- submitted victim impact statements when not under pressure to do so. As a result, fewer crime victims' voices would be heard, not more. By contrast, a foreseeability 6 standard would tend to encourage acceptance of belated victim impact statements because it offers Board members a fair-minded and objective standard for evaluating them. The foreseeability standard would promote fairness in the rescission process, benefitting crime victims, inmates and the Board of Parole alike. The choice couldn't be clearer. 7 CONCLUSION FOR THE ABOVE-STATED REASONS, AND THE REASONS ADVANCED IN PETITIONER'S MAIN BRIEF, THE RECISSION DETERMINATION SHOULD BE ANNULLED. Dated: January 16, 2014 8 Respectfully submitted, Al~t~ New York State Defenders Assoc. 194 Washington Ave., Suite 500 Albany, New York 12210 (518) 465-2524 Counsel of Record Norman P. Effman Executive Director Wyoming County-Attica Legal Aid Bureau, Inc. 18 Linwood Ave. Warsaw, New York 14569 (585) 786-8450 Fax (585) 786-8478 Counsel for Appellant Pablo Costello