Sunshine on the Parole Process

A Columbia County Supreme Court Judge has ordered a new parole hearing for a defendant convicted of murder and sentenced to 20 years to life imprisonment who has already served 32 years in prison. The defendant had sought to produce the minutes of his original sentence, which he claimed contained a sentencing recommendation and showed that the sentencing court had decided to impose a 20 year minimum and rejected the maximum of 25 years to life. The district attorney’s office claimed that despite numerous attempts to locate the original sentencing minutes they could not be found.

The judge’s chambers undertook its own search and found the minutes within approximately 30 minutes.

The court expressed concern about the district attorney’s conduct and characterized it as either lack of diligence or deliberate indifference. It expressed concern that the conduct was routine, and declined to wait until it could be determined if that conduct was sanctionable.

A tip to practitioners: the court’s search had uncovered a 2008 letter from the chief court reporter for Nassau County that indicated  the minutes were not unavailable. The court noted, however, that under 22 NYCRR §800.9(b)(5), sentencing minutes are required to be part of the record on appeal from a conviction and are archived by the State Library.

The court also took the parole board to task for considering materials, including victim impact statements,  that contained “unfounded assertions” and were “emotional,” “extremely inflammatory.” It also criticized the parole board for failing to comply with N.Y. Executive Law §259-i(2)(a), which requires that the board’s recommendation against parole directly address comments before the board.

Related Reading:

• Joel Stashenko, Judge Orders Parole Hearing After Finding ‘Lost’ Records, NYLJ (Sept. 29, 2014).