Papers considered: 1. Notice of Petition dated January 26, 2024; Verified Petition dated January 26, 2024; Affirmation of Scott H. Henney, Esq., in Support dated January 26, 2024, with Exhibits 1-2; Affidavit of Elias Beltran in Support, dated January 24, 2024; Affirmation of Angela Garcia, Esq., dated January 25, 2024, with Exhibits A-N; and Memorandum of Law in Support. 2. Answer in Special Proceeding, with Exhibits A-I, dated March 1, 2024 and Memorandum of Law in Opposition. 3. Memorandum of Law in Reply. For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules DECISION/ORDER In this special proceeding pursuant to Article 78 of the Civil Practice Law and Rules, Petitioner, Elias Beltran, age 51, seeks judicial review of the determination of Respondent, Daryl C. Towns, as Chairman of the New York State Board of Parole, which denied Beltran’s application for discharge from parole supervision. Towns opposes. BACKGROUND In 1991, Beltran was convicted of two counts of Murder in the Second Degree (Penal Law §125.25[1]) and sentenced to two consecutive sentences of 15 years to life. He served 29 years in prison until his release to parole supervision on September 6, 2018, at his first Parole Board appearance. Within one month of his release, he obtained full-time employment as a Case Manager at the Center for Community Alternatives in the Youth Services Division. Two months later, he applied for admission to and was accepted into Cornell University’s PhD program in Comparative Literature. Consequently, Beltran moved to Tompkins County and his parole supervision was transferred to the Elmira Area Office, which led to assignment to a new Parole Officer. As a doctoral student, Beltran was employed full-time with teaching and research responsibilities. He also volunteered as a writing instructor at Tompkins County Community College. Simultaneously, his new Parole Officer implemented some changes in Beltran’s supervision. Prior to moving to Ithaca, Beltran was reporting to his New York City-based Parole Officer every four months with no curfew imposed. In Tompkins County, he was required to report bi-weekly and comply with an 8:00 PM curfew. The curfew limited his course selection options and restricted his access to Cornell’s library and other facilities which are open past 8:00 PM. Additionally, geographical restrictions have prevented him from pursuing research opportunities in the Dominican Republic and he has been denied permission to apply for a passport. In May of 2022, he was offered a position in designing and teaching a literature class at a correctional facility for Cornell’s Prison Education Program. The program required a letter from the Parole Officer indicating his consent to teaching at a correctional facility. The Parole Officer denied permission. Beltran was offered a similar position at Bard College which also required permission of his Parole Officer, who again denied permission. Bard College intervened, resulting in the Parole Officer being directed by his superiors to permit Beltran to apply for the position. In May of 2023, the Parole Officer expressed his ire towards Beltran for having “gone over his head” to obtain the permission letter. In August 2023, Beltran became eligible for review for discharge from parole supervision. In support of his opportunity for discharge, Beltran submitted to his Parole Officer several letters of recommendation, which he suspects were never forwarded to the Parole Board. On October 4, 2023, the Parole Officer advised Beltran that he had been denied for release from supervision. No letter was provided explaining the denial. On October 30, 2023, he submitted a letter of appeal to the Parole Board asserting that the denial of release was arbitrary, capricious and unlawful, together with a letter of support from his attorney. As of January 24, 2024, no response had been received. As a result, this proceeding ensued. In opposition, Respondent asserts that Beltran was not denied discharge. Rather, the Parole Board merely deferred a discharge determination for 12 months in accordance with Directive 9235 §(IV)(E)(2), a fact which apparently was never communicated to Beltran. Thus, his Petition should be construed as a challenge to the act of deferral rather than a denial of discharge. Pursuant to Executive Law §259-j, the Parole Board is afforded “complete discretion” to discharge a person from parole if it is satisfied such discharge “is in the best interests of society”. People ex rel. Allah v. N.Y. State Bd. of Parole, 158 AD2d 328, 329 (1st Dept., 1990). A discretionary determination to deny or defer discharge from parole supervision is considered a “judicial function” and is not judicially reviewable if made in accordance with law, as provided in Executive Law §259-i(5). See, Gallo v. Travis, 158 AD2d 448 (2d Dept., 1997); King v. N.Y. State Div. of Parole, 306 AD2d 482 (2d Dept., 2003). Beltran claims in reply that the Parole Board’s deferral is essentially a denial of discharge, the difference being merely semantic. It was based solely on the seriousness of his offense, which is not a legally cognizable basis for denying discharge from parole supervision under Executive Law §259-j(1). That section provides that absolute discharge from supervision may be granted to a parolee if the Parole Board is satisfied that same “is in the best interests of society” and makes no mention of the seriousness of the underlying crime as a factor in such determination. The deferral determination recites that further supervision is “warranted considering the seriousness of the offense” and such continued supervision is “in the best interests of society”. Thus, Beltran argues the determination is affected by an error of law as an incorrect standard was utilized. Additionally, as Respondent concedes that it failed to consider the letters in support provided to the Parole Officer and to the Parole Board, Beltran asserts the determination is arbitrary and capricious. DISCUSSION The law is clear that a determination of the Parole Board to defer or deny discharge from supervision is “deemed to be a judicial function and shall not be reviewable if done in accordance with law”. Executive Law 259-i(5); Gallo v. Travis, 245 AD2d 448 (2d Dept., 1997). Absent a “convincing demonstration” to the contrary, the Board is presumed to have acted properly in accordance with statutory requirements (Matter of McLain v. New York State Div. of Parole, 204 AD2d 456 [2d Dept., 1994]) and “judicial intervention is warranted only when there is a showing of irrationality bordering on impropriety”. Silmon v. Travis, 95 NY2d 470, 476 (2000); Matter of Sutherland v. Evans, 82 AD3d 1428, 1429 (3d Dept., 2011). Other than a prohibition against discharging a financially able parolee who has failed to comply with an order of restitution, Executive Law §259-j(1) contains no other restrictions on the Parole Board’s discretion. That section prescribes no specific procedures which the Parole Board must follow. Executive Law §259-j(2) directs the Chairperson of the Board of Parole to promulgate rules and regulations governing the issuance of discharges from community supervision “to assure that such discharges are consistent with public safety”. However, no such regulations have been promulgated. In the absence of promulgated regulations, the Parole Board is guided by Directive 9235, contained in the Parole Manual, (identified further therein as Item 9208.02), which has been held to have no force of law and is not “properly enforceable by [a] court”. People ex rel. Allah v. NY State Bd. of Parole, 158 AD2d 328 (1st Dept., 1990); see also, Matter of Sutherland v. Evans, 82 AD3d at 1429-1430 (3d Dept., 2011); People ex rel. MacKelvey v. NY State Bd. of Parole, 138 AD2d 549 (2d Dept., 1988). Consequently, a Parole Board’s discharge determination is made “in accordance with law” unless a convincing demonstration is made that said determination is “irrational bordering on impropriety”. Silmon v. Travis, supra. A parole discharge determination requires the Parole Board to be “satisfied” that “absolute discharge” is “in the best interests of society”. Executive Law §259-j. Respondent concedes that it did not consider the thirteen letters offered in support of Beltran’s discharge, several of which urge that it would be in the best interests of society to discharge him. Towns argues he was not obligated to do so. Thus, the Parole Board admittedly failed to consider essential input from members of society personally familiar with Beltran’s present character and continued remarkable efforts at rehabilitation. These letters attest to Beltran’s exemplary character, sincere efforts to establish a career in teaching, a devotion to community involvement, and his desire to continue leading a law-abiding life. Here, in this Court’s judgment, a determination made without considering such indispensable input bearing on the issue of whether the best interests of society will be served by his discharge from parole is irrational, bordering on impropriety. Consequently, the Court finds that Beltran has sustained his burden of demonstrating convincingly that the Respondent’s deferral of discharge was not made “in accordance with law”. Accordingly, it is hereby ORDERED, the Petition is granted; Respondent’s determination dated August 11, 2023, deferring a discharge decision for 12 months is hereby annulled and remitted to the Parole Board for a new determination which considers the letters submitted in support of Beltran’s discharge. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order, relieving the parties of their obligations under CPLR §2220 regarding filing and entry of same, but this does not relieve the parties of their obligations regarding service of same with notice of entry thereon. Dated: May 8, 2024
