Expertise in Legal Aid's Criminal Trials, Appeals and Parole Representation Produces Landmark Ruling for Legal Aid Criminal Practice Clients
WEDNESDAY, FEBRUARY 15, 2012

In a landmark decision yesterday, the Appellate Division, First Department ruled that New York's bifurcated procedure for revoking parole is invalid, holding that a regulation that treats parolees convicted of more serious offenses differently is unconstitutional. Martin LaFalce, staff attorney in the Manhattan Office of the Criminal Practice, told Reuters News Service and the New York Law Journal that the ruling has "ramifications for parolees charged with violating the conditions of their release." He said that this was the first time a case had directly challenged the parole board's authority to have the final say on recommendations by an administrative law judge.

"We see this decision as having serious relevance for parolees going forward, but also parolees who served time assessments not imposed on them by the judge who heard from them at revocation hearings," Mr. LaFalce said.

This case is a good example of the outstanding results produced by The Legal Aid Society's Criminal Practice with its expertise in criminal trials, appeals, parole representation and other specialized units offering support. Kerry Elgarten, a staff attorney in the Criminal Appeals Bureau who works on parole revocation cases, was co-counsel on the case.

The decision by Justice Rolando Acosta is an incredible tribute to the hard work, perseverance, and altogether brilliant lawyering of Marty LaFalce and Kerry Elgarten. Marty's client, Clarence Mayfield, was given an 18-month time assessment as part of a negotiated plea agreement. Because Mr. Mayfield was on parole for manslaughter, the 18-month assessment, pursuant to Division of Parole regulations, was merely a recommendation that had to be approved by the Parole Board. The Board chose instead to increase the time assessment to 36 months in a one-sentence decision issued by a single Board member.

Marty filed an administrative appeal, then an Article 78 petition when the appeal was rejected. He appealed the denial of the Article 78 to the First Department, which adopted virtually all of Marty's arguments. On statutory grounds, the court found that the legislature had effectively done away with Board review when it promulgated legislation in 1991 that made it clear that the ALJ fixed the time assessment in all cases and that it was not subject to Board review and approval. In effect, the court held that the Division of Parole had usurped the legislature's authority when it enacted 9 NYCRR 8005.20(c)(6), which brought back the Board review process the legislature had eliminated. On constitutional grounds, the court found that the regulation authorizing board review fell woefully short of providing adequate due process, as Board review of the time assessment was conducted in secret, with no notice to the parolee, no opportunity to appear and be heard, and no guidelines whatsoever on the basis for changing the ALJ's determination.

Read the decision (PDF)




Reuters
NY parole procedure invalid, unconstitutional: state appeals court
2/14/2012

A state appeals court on Tuesday ruled that New York's bifurcated procedure for revoking parole is invalid, holding that a regulation that treats parolees convicted of more serious offenses differently runs afoul of state and constitutional law.

When a defendant is charged with violating parole, state law calls for a hearing to determine whether a violation has occurred. If a parolee is found in violation, the presiding officer of the hearing decides how long before the defendant can be eligible for consideration by the parole board for re-release.

In cases in which the parolee was convicted of homicide, sex crimes or kidnapping, however, a state parole division rule provides that the hearing officer's decision is merely a recommendation and can be unilaterally overruled by a single member of the state parole board.

The Appellate Division, First Department, held Tuesday that the parole rule amounts to a "usurpation of legislative prerogative" by contravening the purpose of the underlying state statute. The legislature, the court said, intended for hearing officers to have the final word on the amount of time between a violation and possible re-release.

The panel also held that the procedure violates due process.

"The Division must bring its regulations into conformity with the Executive Law so that petitioners can receive the kind of hearing that the Legislature intended," wrote Justice Rolando Acosta for a unanimous five-judge panel.

In the case at hand, Clarence Mayfield, who was convicted of manslaughter in 1998, was released under supervision in 2008 but charged three months later with violating the terms of his parole. The hearing officer recommended that Mayfield be eligible for re-release after 18 months, but a member of the parole board increased it to 36 months.

VIOLATED DUE PROCESS

In a lawsuit filed against the state, the Legal Aid Society, which represented Mayfield, argued that his right to due process had been violated, since he did not have the opportunity to conduct a hearing before the parole board member who overruled the hearing officer.

The court agreed, ruling that the process robbed Mayfield of his constitutional rights.

"By any measure, the sweeping grant of authority to a single board member whom petitioner could not address violated petitioner's right to due process of law," Acosta wrote. "The current procedure . . .failed to comport with the minimum state and federal constitutional requirements of due process."

Martin LaFalce of the Legal Aid Society, who represented Mayfield, said the ruling had "ramifications for all parolees charged with violating the conditions of their release.

The decision will not have a material effect on Mayfield himself, who was granted re-release on parole last month and will remain under supervision until December 2014, according to a spokeswoman for the state Department of Corrections.

The state attorney general's office, which defended the parole division, did not immediately comment on the ruling Tuesday. The corrections spokeswoman said that the department's counsel had not yet had a chance to review the decision.

The case is In re Clarence Mayfield v. Andrea Evans, Chairwoman, New York State Division of Parole, New York State Supreme Court, Appellate Division, First Department, No. 5936-5936A. For Mayfield: Martin LaFalce of the Legal Aid Society

For the state: Assistant Attorney General Simon Heller

 




The New York Law Journal
Judges Reject Unilateral Reincarceration Decision for Parole Violations
By Andrew Keshner
02-15-2012

A parole division regulation authorizing a single board member to have the final say on the length of reincarceration for parole violators convicted of certain serious crimes is an "invalid usurpation of legislative authority" that violated a man's due process rights, a state appellate panel has ruled.

Though hearing officers who are not parole board members may determine the length of time to be served by a parole violator, a parole division regulation states that the length of reincarceration for parolees who served sentences for homicide, kidnapping and sex crimes is subject to final approval by a parole board member.

But a unanimous panel of the Appellate Division, First Department, held the regulation creating the bifurcated parole revocation process, 9 NYCRR 8005.20(c)(6), was in "direct contravention" of 1991 changes enacted by the Legislature that let both hearing officers and parole board members determine reincarceration periods for violators.

At issue in the Feb. 14 decision was parole board member James Ferguson's decision to impose a 36-month reincarceration period for Clarence Mayfield—whose original convictions included first-degree manslaughter—after an administrative law judge had recommended 18 months.

"The Division regulations for serious crimes have the effect of overruling the Legislature's 1991 amendment, which does not require Parole Board approval of time assessments, regardless of the underlying conviction. …The Division must bring its regulations into conformity with the Executive Law so that petitioners can receive the kind of hearing that the Legislature intended," Justice Rolando T. Acosta (See Profile) wrote for the panel in Mayfield v. Evans, 5936-5936A.

See Mr. Mayfield's brief, the state's brief, and Mr. Mayfield's reply.

Justice Acosta said Mr. Ferguson imposed the reincarceration in a one-sentence decision noting that Mr. Mayfield's parole violation had happened only 1 1/2 months after his release for prior convictions for robbery and attempted murder. Thus, he observed, "regulation at issue here inexcusably deprived petitioner of the opportunity to be heard."

The panel reversed Mr. Mayfield's unsuccessful administrative appeal and the ensuing dismissal of his Article 78 petition by Manhattan Supreme Court Justice Cynthia S. Kern (See Profile). The ruling remanded the matter to the parole board. However, Mr. Mayfield was released on parole on Jan. 27 after completing his period of reincarceration.

Martin LaFalce, of the Legal Aid Society's Criminal Trials Division, represented Mr. Mayfield at his revocation hearing and later on his appeal.

Kerry Elgarten of the Legal Aid Society's Criminal Appeals Bureau and the Parole Revocation Defense Unit were co-counsel on Mr. Mayfield's appeal.

Justices Angela M. Mazzarelli (See Profile), David B. Saxe (See Profile), Leland G. DeGrasse (See Profile) and Sallie Manzanet-Daniels (See Profile) joined the opinion. The case was argued on Oct. 13, 2011.

In October 2008, Mr. Mayfield, now 37, was conditionally released to parole after a sentence for a 1998 manslaughter conviction that ran concurrently with his 1992 convictions for second-degree attempted murder and first-degree robbery.

It was the second time he had been released. He was returned to custody shorting after being released in 2007 for violating the conditions of his parole.

In January 2009, Mr. Mayfield was charged with violating his parole again. Following a May 2009 revocation hearing, Mr. Mayfield pleaded guilty to having cell phone contact with a person he knew to have a criminal history.

Administrative Law Judge Amy Porter then recommended that he be returned to prison for 18 months.

Her decision was referred to the parole board, where Mr. Ferguson doubled the "time assessment" without interviewing Mr. Mayfield, according to Mr. LaFalce.

Justice Acosta pointed out that before 1991, time assessments made by non-parole board members were "only recommendations" that needed board approval.

But 1991 amendments to Executive Law §259-i[3][f] put hearing officers and parole board members on equal footing, saying "a hearing officer who is not a Parole Board member may 'fix' time assessments without Board approval, regardless of the underlying conviction," Justice Acosta wrote.

The statute states that the presiding officer—in this case, Ms. Porter—"may" direct outcomes like a restoration to supervision or determine an amount of time for reincarceration.

But the regulation in question provides that in the case of parolees convicted for certain crimes, "a single member of the board shall make the final decision that imposes a time assessment."

In defending the regulation, the Attorney General's Office argued that the use of "may" rather than "shall" authorized but did not require a presiding officer to fix a period of reincarceration.

But Justice Acosta called the state's arguments "unpersuasive."

"The word "may" is ultimately directive, as it instructs the hearing officer to choose an option from a list that does not include merely recommending a time assessment for serious offenders, as contemplated by 9 NYCRR 8005.20(c)(6)," he wrote.

In characterizing the attorney general's response to Mr. Mayfield's due process claims, Justice Acosta wrote, "Effectively, respondent's position is that the revocation stage requires due process while the time assessment stage does not."

But he said the argument failed for several reasons. First, Justice Acosta wrote, "it is not a foregone conclusion" during the time assessment stage that the parolee will be taken back into custody and become a prisoner "with no liberty interest in parole."

Justice Acosta also said due process attached during the time assessment phase under a 1972 U.S. Supreme Court case, Morrissey v. Brewer, 408 U.S. 471, which held that petitioners in that case were entitled to a hearing before their parole was revoked.

Justice Acosta said the regulation lacked elements like procedures for the board member's review, standards for modification or opportunities for the parolee's counsel to be heard.

Justice Acosta acknowledged that Mr. Mayfield could "very well" have deserved the longer period.

"While we would readily defer to the Parole Board's determination in this case were we in a position to do so we are unable to take such action because the current procedure outlined in 9 NYCRR 8005.20(c)(6) failed to comport with the minimum state and federal constitutional requirements of due process," he said.

Mr. LaFalce said the regulation had been in effect since 1991, becoming narrower in its scope over the years.

While parolees had previously challenged modifications of their particular cases, Mr. LaFalce said this was the first time a case had directly challenged the parole board's authority to have the final say on recommendations by an administrative law judge.

"We see this decision as having serious relevance for parolees going forward, but also parolees who served time assessments not imposed on them by the judge who heard from them at revocation hearings," Mr. LaFalce said.

The Attorney General's Office did not respond a request for comment. Assistant Attorney General Simon Heller and Benjamin N. Gutman represented the state.

A spokeswoman for the Department of Corrections and Community Supervision, which includes the parole division, said the department had just received the decision and could not comment.