Third Department, April 28, 2016

Matter of Hawkins v New York State Dept. of Corr. & Community Supervision, 51 Misc 3d 1218(A), 2015 NY Slip Op 51995(U), modified.

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for appellants.

Issa Kohler-Hausmann, New York City, and Christopher Seeds, Ithaca, for respondent.

New York Civil Liberties Union, New York City (Philip Desgranges of counsel), and The Legal Aid Society, New York City (Cynthia Conti-Cook of counsel), amici curiae.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered May 14, 2015 in Sullivan County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78 to, among other things, annul a determination of respondent Board of Parole denying petitioner's request for parole release.

When petitioner was 16 years old, he strangled to death his 14-year-old girlfriend and then hid her body. Thereafter, petitioner actively lied about his responsibility for the crime for several months. Approximately two years after the crime, the victim's body was discovered. Petitioner was eventually arrested and then tried and convicted of murder in the second degree. He was thereafter sentenced, in 1979, to a prison term of 22 years to life.{**140 AD3d at 36}

Petitioner has been denied parole release nine times since becoming eligible for it in 2000. At the time of his March 2014 parole release hearing, at issue on this appeal, petitioner was 54 years old and had served 36 years of his sentence. Respondent Board of Parole denied petitioner's request for parole release upon the conclusion that, among other things, granting his [*2]release "would so deprecate the seriousness of [his] offense as to undermine respect for the law" and imposed a 24-month hold to be followed by another appearance. When the Board's Appeals Unit failed to rule on petitioner's administrative appeal within four months (see 9 NYCRR 8006.4 [c]), petitioner commenced this proceeding challenging the Board's determination, requesting either his immediate release or a de novo parole release hearing. Supreme Court, among other things, annulled the determination, remanded for a de novo parole release hearing and precluded one of the Board's commissioners from participating in any future parole proceedings involving petitioner.^[FN1]

We agree with petitioner that, as a person serving a sentence for a crime committed as a juvenile, petitioner has a substantive constitutional right not to be punished with a life sentence if the crime reflects transient immaturity and that petitioner was denied his constitutional right to a meaningful opportunity for release when the Board failed to consider the significance of petitioner's youth and its attendant circumstances at the time of the commission of the crime. The Board, as the entity charged with determining whether petitioner will serve a life sentence, was required to consider the significance of petitioner's youth and its attendant circumstances at the time of the commission of the crime before making a parole determination. That consideration is the minimal procedural requirement necessary to ensure the substantive Eighth Amendment protections set forth in Graham v Florida (560 US 48 [2010]), Miller v Alabama (567 US &mdash, 132 S Ct 2455 [2012]) and Montgomery v Louisiana (— US &mdash, 136 S Ct 718 [2016]).

For the purposes of sentencing, "children are constitutionally different from adults" (Montgomery v Louisiana, — US at &mdash, 136 S Ct at 733 [internal quotation marks and citation omitted]; see Miller v Alabama, 567 US at &mdash, 132 S Ct at 2458). This difference stems from three primary distinctions:{**140 AD3d at 37}

"First, children have a lack of maturity and an underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risk-taking. Second, children are more vulnerable to negative influences and outside pressures, including from their family and peers; they have limited control over their own environment and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child's character is not as well formed as an adult's; his [or her] traits are less fixed and his [or her] actions less likely to be evidence of irretrievable depravity" (Montgomery v Louisiana, — US at &mdash, 136 S Ct at 733 [internal quotation marks and citations omitted]; see Miller v Alabama, 567 US at &mdash, 132 S Ct at 2464; Roper v Simmons, 543 US 551, 569-570 [2005]).

For these reasons, primarily, "the case for retribution is not as strong with a minor as with an adult" and "[t]he need for incapacitation is lessened, too, because ordinary adolescent development diminishes the likelihood that a juvenile offender forever will be a danger to society" (Montgomery v Louisiana, — US at &mdash, 136 S Ct at 733 [internal quotation marks and citations omitted]; see Miller v Alabama, 567 US at &mdash, 132 S Ct at 2465; Graham v Florida, 560 US at 71-72). [*3]Consistent with these conclusions, the Supreme Court of the United States held in Miller v Alabama that mandatory sentences of life without the possibility of parole for juvenile homicide offenders violate the Eighth Amendment's prohibition on cruel and unusual punishment (567 US at &mdash, 132 S Ct at 2460). As that Court has since clarified, a substantive rule announced in Miller is "that life without parole is an excessive sentence for children whose crimes reflect transient immaturity" (Montgomery v Louisiana, — US at &mdash, 136 S Ct at 735). The Court considered this guarantee in the context of the sentencing stage, and it found that the "procedural requirement necessary to implement [this] substantive guarantee" is "[a] hearing where youth and its attendant characteristics are considered" for the purpose of "separat[ing] those juveniles who may be sentenced to life without parole from those who may not" (— US at &mdash, 136 S Ct at 734-735 [internal quotation marks and citation omitted]; see Miller v Alabama, 567 US at &mdash, 132 S Ct at 2471).

In addressing whether a juvenile's sentence must include the possibility of parole, the Court has given some guidance as to{**140 AD3d at 38} the promise that a parole determination represents. The Court has clarified that the relevant distinction between a constitutional and unconstitutional life sentence for a juvenile homicide offender—for all but the rare case of an irreparably corrupt juvenile—is that a constitutional sentence guarantees, at some point, a "meaningful opportunity to obtain release" (Graham v Florida, 560 US at 75; see Montgomery v Louisiana, — US at &mdash, 136 S Ct at 736).^[FN2] As the Court further made clear, it did not see its role, upon reaching this conclusion, to prescribe a particular opportunity for release that states must afford; instead, the Court found that "[i]t is for the [s]tate, in the first instance, to explore the means and mechanisms for compliance" (Graham v Florida, 560 US at 75). Although the Court has not specifically reviewed a case regarding a parole determination for a juvenile homicide offender, it is axiomatic that such an offender still has a substantive constitutional right not to be punished with life imprisonment for a crime "reflect[ing] transient immaturity" (Montgomery v Louisiana, — US at &mdash, 136 S Ct at 735). Further, the Court has made abundantly clear that the "foundational principle" of the Eighth Amendment jurisprudence regarding punishment for juveniles is "that [the] imposition of a [s]tate's most severe penalties on juvenile offenders cannot proceed as though they were not children" (Miller v Alabama, 567 US at &mdash, 132 S Ct at 2466). A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court.

With this in mind, we reach petitioner's contention that he was denied a meaningful opportunity for release.^[FN3] The Court has found that, at the sentencing stage, a defendant who [*4]committed a crime as a juvenile is procedurally entitled to a "hearing where 'youth and its attendant characteristics' are considered"^[FN4] {**140 AD3d at 39}in order to separate out those who can be punished by a life in prison from those who cannot (Montgomery v Louisiana, — US at &mdash, 136 S Ct at 735, quoting Miller v Alabama, 567 US at &mdash, 132 S Ct at 2460). We agree with petitioner that an analogous procedural requirement is necessary at the parole release hearing stage. For those persons convicted of crimes committed as juveniles who, but for a favorable parole determination will be punished by life in prison, the Board must consider youth and its attendant characteristics in relationship to the commission of the crime at issue (see Hayden v Keller, 2015 WL 5773634, *8-10, 2015 US Dist LEXIS 134426, *22-29 [ED NC, Sept. 25, 2015, No. 5:10-CT-3123 (BO)]; Greiman v Hodges, 79 F Supp 3d 933, 944 [SD Iowa 2015]).^[FN5]

Here, neither the hearing transcript nor the Board's written determination^[FN6] reflects that the Board met its constitutional obligation to consider petitioner's youth and its attendant{**140 AD3d at 40} [*5]characteristics in relationship to the commission of the crime.^[FN7] The Eighth Amendment "requires a sentencer to consider a juvenile offender's youth and attendant characteristics" before punishing an offender with a life in prison (Montgomery v Louisiana, — US at &mdash, 136 S Ct at 734 [emphasis added]). Because petitioner was entitled to a meaningful opportunity for release in which his youth, and its attendant characteristics, were considered by the Board, we agree with Supreme Court that petitioner is entitled to a de novo parole release hearing.

Supreme Court, however, erred here in precluding one of the Board's commissioners from participating in any future parole proceeding involving petitioner.^[FN8] Petitioner did not request such relief, and the record provides no basis for a conclusion that the commissioner at issue is either unqualified or biased. The remaining arguments have been considered and are either academic or without merit.

Egan Jr., J. (concurring in part and dissenting in part). On May 15, 1976, the victim's parents called the police to report that their 14-year-old daughter was missing. An investigation and search immediately began and, after it was discovered that petitioner—the victim's 16-year-old former boyfriend—had {**140 AD3d at 42}been with the victim on the day that she was last seen, petitioner was questioned by the authorities. Petitioner denied having any knowledge of the victim's whereabouts and actively participated in the search for her from May 1976 to March 1977—perpetuating her family's hope that she was still alive and participating in what aptly has been described as a hoax, casting himself in the role of a desperate teenager frantically searching for the girl he loved. In reality, however, petitioner—purportedly "distraught" over the victim's decision to acquiesce to her parents' wishes and break up with him—had devised a plan to lure the victim to a secluded location whereupon he would kill the victim and then kill himself.^[FN1] Petitioner partially executed that plan—strangling the victim with a shirt [*6]and hiding her body in a 55-gallon drum, which he then placed inside a 12-foot shaft of an abandoned shipyard located at the tip of Staten Island. The victim's badly decomposed remains were not discovered until nearly two years later.

In the interim, petitioner continued to deny any involvement in or responsibility for the crime and, recognizing that he "wouldn't be able to uphold the facade" that he had created if he remained in the area, eventually left to live in another state. Petitioner remained out of state—attending high school—for approximately one year, until his decision to confide in certain friends resulted in his eventual arrest and prosecution. In 1979, petitioner was sentenced upon his conviction of murder in the second degree to a prison term of 22 years to life.^[FN2] Since becoming eligible for parole release in 2000, petitioner has been denied release nine times based upon, among other things, the nature of the underlying crime, which has been variously—and appropriately—described as extremely serious, heinous and bizarre. The majority now proposes to afford petitioner a de novo parole hearing, finding that he has not been afforded a{**140 AD3d at 43} "meaningful opportunity to obtain release" (Graham v Florida, 560 US 48, 75 [2010]) and, further, that the Eighth Amendment and the cases interpreting its application to juvenile offenders (see Montgomery v Louisiana, — US &mdash, 136 S Ct 718 [2016]; Miller v Alabama, 567 US &mdash, 132 S Ct 2455 [2012]; Graham v Florida, 560 US at 75) impose upon respondent Board of Parole a requirement that it expressly consider—in the context of petitioner's parole determination—petitioner's "youth and its attendant characteristics" in relationship to the murder that he committed nearly 40 years ago.

We agree that Supreme Court erred in precluding one of the Board's commissioners from participating in any subsequent parole hearing involving petitioner and, to that limited extent, we concur in the majority's decision. As to the balance, however, we are satisfied that New York's sentencing and parole procedures afford petitioner a "meaningful opportunity to obtain release" (Graham v Florida, 560 US at 75), which is all that Graham, Miller, Montgomery and the Eighth Amendment itself require. Because we are of the view that no constitutional violation occurred here, we respectfully dissent and would reverse Supreme Court's judgment in its entirety and dismiss the petition.

Although the majority's decision discusses at length the characteristics that distinguish juvenile offenders from adult offenders and explores the reasons why traditional penological goals—retribution, deterrence, incapacitation and rehabilitation—do not, in all but the rarest of cases, justify imposing the most severe sentence possible upon someone who commits a crime [*7]before he or she is 18 years old, it glosses over the underlying factual differences that distinguish petitioner from the defendants in Graham, Miller and Montgomery—the most notable of which being that, unlike the defendants in those cases, petitioner was not actually sentenced to life in prison without the possibility of parole. In Graham, the 16-year-old defendant was sentenced to, among other things, life in prison following his conviction of armed burglary. As the state in which he was sentenced (Florida) had abolished its parole system, such defendant was—absent executive clemency—facing life in prison without any possibility of parole (Graham v Florida, 560 US at 57). The Supreme Court of the United States held that the Eighth Amendment prohibited a state from imposing a sentence of life without the possibility of parole upon a juvenile nonhomicide offender (id. at 74)—a determination {**140 AD3d at 44}grounded in the belief that a state cannot determine, at the time of sentencing, that such an offender "never will be fit to reenter society" (id. at 75). In reaching that conclusion, the Court cautioned that the Eighth Amendment does not require a state to release a juvenile offender during his or her lifetime; rather, the state need only afford the juvenile offender "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" (id.). The differences between petitioner and the defendant in Graham are readily apparent—namely, that petitioner was convicted of murder and was sentenced to a prison term of 22 years to life in a state with an active parole system. Indeed, having appeared before the Board on multiple occasions, there is no question that petitioner has been afforded an opportunity for release—the adequacy of which will be discussed infra.

The factual circumstances presented in Miller and Montgomery are equally distinguishable from the matter now before this Court. In Miller, the defendants were convicted of murder in a state where the sentencing statutes "mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example, life with the possibility of parole) more appropriate" (Miller v Alabama, 567 US at &mdash, 132 S Ct at 2460). The requirement "that all children convicted of homicide receive lifetime incarceration without possibility of parole" (567 US at &mdash, 132 S Ct at 2475) and the corresponding divestiture of any discretion to impose a lesser sentence prompted the Court to conclude "that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments" (567 US at &mdash, 132 S Ct at 2460 [emphasis added, internal quotation marks omitted]). Again, petitioner was not sentenced to life without the possibility of parole, nor was he subject to a mandatory sentencing scheme such as the one at issue in Miller.

The Court's decision in Montgomery was even more narrowly tailored—primarily focusing upon whether Miller had announced a new rule of substantive law that, in turn, was entitled to retroactive effect, i.e., whether the holding in Miller applied to a juvenile defendant who was convicted in 1969 and, under Louisiana law, automatically received a mandatory sentence of life without the possibility of parole (Montgomery v Louisiana, — US at &mdash, 136 S Ct at 725-726). The Court {**140 AD3d at 45}answered that inquiry in the affirmative, noting that "[a] [s]tate may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them" (— US at &mdash, 136 S Ct at 736). While the Court indeed made clear that such offenders "must be given the opportunity to show [that] their crime did not reflect irreparable corruption," it also reiterated that "[t]hose prisoners who have shown an inability to reform will continue to serve life sentences" (— US at &mdash, 136 S Ct at 736).

Even setting aside these factual distinctions and assuming, as the majority posits, that [*8]petitioner falls within the ambit of Graham and its progeny^[FN3] and, further, that the sentencing procedures at issue in those cases and the parole determination under review here are governed by the same procedural safeguards^[FN4] the key principle to be extracted from Graham, Miller and Montgomery—that, in order to avoid an Eighth Amendment violation, a juvenile offender must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" (Graham v Florida, 560 US at 75)—was, in our view, honored here. {**140 AD3d at 46}Executive Law § 259-i establishes a procedure for affording inmates such as petitioner discretionary release and sets forth the criteria that the Board must consider in determining whether to grant release on parole (see Executive Law § 259-i [2] [c] [A]). Among the criteria contained therein is "the seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, . . . as well as consideration of any mitigating and aggravating factors, and activities following arrest prior to confinement" (Executive Law § 259-i [2] [c] [A] [vii]).

Age at the time of the offense, together with what the Supreme Court of the United States has characterized as a juvenile's corresponding lack of maturity, sense of responsibility and insight and increased risk of impulsivity and recklessness, certainly would qualify as mitigating factors within the meaning of the statute and could properly be considered by the Board in assessing whether a particular individual should be released on parole.^[FN5] Indeed, a review of the transcripts of petitioner's various appearances before the Board, including his most recent hearing in March 2014, reveals that petitioner repeatedly raised—and the Board indeed was aware of and considered—petitioner's age and asserted lack of maturity at the time of the offense.^[FN6] As this Court has made abundantly clear, "the Board [is] not required to give each statutory factor equal weight" and, indeed, may place greater emphasis upon the serious nature of the underlying crime (Matter of King v Stanford, 137 AD3d 1396, 1397 [2016]; see Matter of Feilzer v New York State Div. of Parole, 131 AD3d 1321, 1322 [2015]; Matter of Leung v Evans, 120 AD3d 1478, 1479 [2014], lv denied 24 NY3d 914 [2015]). Further, while the Board must state the reasons for a denial of parole "in detail" (Executive Law § 259-i [2] [a] [i]), it need not expressly recite each and every factor that it considered in reaching its determination, nor must it{**140 AD3d at 47} discuss such factors at length (see Matter of Duffy v New York State Dept. of Corr. & Community Supervision, 132 AD3d 1207, 1208 [2015]; Matter of Leung v Evans, 120 AD3d at 1479; Matter of Montane v Evans, 116 AD3d 197, 203 [2014], appeal dismissed 24 NY3d 1052 [2014]). Upon reviewing the transcript of petitioner's March 2014 appearance before the Board, we are satisfied that the Board properly and adequately considered petitioner's age and asserted immaturity at the time of the offense before denying him discretionary release. As the Board's determination does not exhibit "irrationality bordering on impropriety" (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000] [internal quotation marks and citation omitted]) and, for the reasons previously discussed, does not run afoul of the Eighth Amendment, it should not be disturbed.

Garry, J., concurs in a separate opinion in which Lynch, J., concurs; Egan Jr., J., concurs in part and dissents in part in a separate opinion in which Rose, J., concurs.

Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as precluded a particular commissioner of respondent Board of Parole from participating in any future parole proceeding regarding petitioner, and, as so modified, affirmed.