Collins v. Hammock

provide "a verbatim record of each interview, parole release hearing * * * and appeal” involved in this matter, as required by subdivision 6 of section 259-i of the Executive Law, resulting in an inadequate record for proper judicial review of the parole release determination. The factual mistake as to petitioner’s prior criminal history was material in that it may have at least affected the Parole Board’s determination of the earliest date a new parole hearing should be scheduled.^[1] Petitioner was given a point rating of nine instead of eight in the evaluation of his past criminal history and crime severity score for parole release guideline purposes. This occurred because he was assessed a point for having committed three or more misdemeanors when in fact he should have received no points under that category. Although this mistake did not change petitioner’s classification within the guidelines, it cannot be said that the Parole Board’s decision was not affected by it. To so conclude would be to usurp the discretion vested in the administrative agency which the judiciary may not do. Likewise, the Parole Board’s determination was tainted by its apparent consideration of three infractions of prison rules which Special Term found were improperly before it. The rule infractions occurred prior to petitioner’s being furnished a copy of the prison regulations as required by subdivision 5 of section 138 of the Correction Law. These infractions were: (1) possessing homemade liquor; (2) stealing; and (3) repairing a set of headphones. Subdivision 6 of section 259-i of the Executive Law provides as follows: "Record of proceedings. The board shall provide for the making of a verbatim record for each interview, parole release hearing, preliminary hearing, revocation hearing and appeal.” There is nothing in the record to indicate that a "verbatim record” of either the interview or parole release hearing or of the administrative appeal, apparently sought by petitioner, was ever made. Petitioner obviously was denied material rights granted him by statute by this failure and a reversal is proper (Executive Law, § 259-i, subd 5). There should be a reversal of the order of Special Term and the matter remanded for a new parole release hearing. An adequate record of the proceedings should be made in accordance with the provisions of subdivision 6 of section 259-i of the Executive Law. On remand the Parole Board should not consider infractions committed by petitioner prior to September 7, 1976 and petitioner’s record should be corrected to indicate less than three prior misdemeanors.