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New York Appeals Court Upholds Former Senator’s Return To Rikers

The Appellate Division of the New York Supreme Court, First Department, has ordered former state senator Guy J. Velella and four others (the petitioners) back to jail. In reaching this decision the court found that the petitioners had been illegally released by New York City’s Local Conditional Release Commission (LCRC).

All 5 petitioners—including Velella and his co-conspirators, Manuel Gonzalez and Hector Del Toro—had been granted early release by the LCRC. Following a flurry of public criticism over Velella’s scandalous release, Mayor Michael Bloomberg fired the original board members and appointed new ones. On November 19, 2004, the newly reconstituted LCRC reversed the prior board and ordered all five petitioners back to jail.

Velella and the others challenged the decision. The LCRC’s ruling was upheld by a state supreme (trial level) court, and appeal was taken.

On December 20, 2004, a panel of five Appellate Division judges unanimously af?rmed. Petitioners Kamala Stephens, Carlos Caba, and Gonzalez, the court held, had not served the required 30 days in jail prior to being considered for release (Correction Law § 273[1]). As to Velella and Del Toro, the board had not waited the required 60 days after rejecting their first application for release before considering their subsequent applications (Correction Law § 273[6]).

The court went on to note that although government agencies are normally barred from changing a valid final order under New York law, “an agency has the power to set aside a determination on the ground of a significant irregularity.” Moreover, because the releases were illegal, the petitioners had no vested substantive due process right to the protection of the release orders. The court further held that the petitioners’ right to substantive due process had not been violated because, “under the circumstances of these cases, each of the petitioners had an adequate post-deprivation opportunity to be heard in these article 78 proceedings.”

The court concluded that the release orders were invalid and that the current LCRC had acted properly. Accordingly, the petitioners were ordered to surrender themselves, but not until December 27. The court offered no explanation for the Christmas reprieve. Velella’s attorney’s immediately appealed to the state’s highest court, the Court of Appeals, which declined to hear his case. See: Matter of Velella v. New York City Local Conditional Release Commission, 13 A.D.3d 201, 788 N.Y.S.2d 8 (NY 2004).

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Related legal case

Matter of Velella V. New York City Local Condition

13 A.D.3d 201, 788 N.Y.S.2d 8, 2004 N.Y. Slip Op. 09453

Supreme Court, Appellate Division, First Department, New York.

In re Guy J. VELELLA, et al., Petitioners-Appellants,



In re Kamala Stephens, Petitioner-Appellant,


The New York City Local Conditional Release Commission, et al., Respondents-

In re Carlos Caba, Petitioner-Appellant,


Daniel Richman, Chairman, the New York City Local Conditional Release
Commission, et al., Respondents-Respondents.

Dec. 20, 2004.

Background: In article 78 proceeding, former inmates challenged determinations of the Conditional Release Commission, advising former inmates that their conditional releases were invalid and directing them to surrender themselves.
The Supreme Court, New York County, Lottie E. Wilkins, J., denied petitions. Former inmates appealed.

Holding: The Supreme Court, Appellate Division, held that conditional releases were statutorily invalid.

**9 Stillman & Friedman, P.C., New York (Charles A. Stillman of counsel), for Guy J. Velella, Manuel Gonzalez, Hector DelToro and Kamala Stephens, appellants.

The Legal Aid Society, New York (William Gibney of counsel), for Carlos Caba, appellant.

Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for respondents.


*201 Order and judgment (one paper), Supreme Court, New York County (Lottie E. Wilkins, J.), entered November 29, 2004, which denied the five CPLR article 78 petitions challenging determinations of respondent Conditional Release Commission, all dated November 19, 2004, advising petitioners that their conditional releases were regarded as invalid, and challenging five determinations of respondent Department of Correction, also all dated November 19, 2004, directing petitioners to surrender themselves; dismissed all proceedings; and directed petitioners to surrender themselves, unanimously affirmed, without costs.

As to petitioners Gonzalez, Caba and Stephens, their applications were improperly **10 considered prior to the required expiration of 30 days' incarceration (Correction Law § 273[1] ), and thus they were invalidly released. Petitioners Velella and DelToro, who were released on re-application had re-applied less than 60 days after their first applications were submitted (Correction Law § 273[6] ), were also illegally released. Because these statutory mandates were not followed, the orders granting conditional releases were illegal (see *202Matter of Winn v. Rensselaer County Conditional Release Commn., 6 A.D.3d 929, 775 N.Y.S.2d 412 [2004], lv. dismissed 3 N.Y.3d 687, 785 N.Y.S.2d 8, 818 N.E.2d 649 [2004] ). While a government agency cannot reopen an application and change a valid, final order absent statutory authority (see Matter of Preston v. Coughlin, 164 A.D.2d 101, 562 N.Y.S.2d 867 [1990] ), an agency has the power to set aside a determination on the ground of a significant irregularity (People ex. rel. Finnegan v. McBride, 226 N.Y. 252, 259, 123 N.E. 374 [1919, Pound, J.] ["Error may be corrected by setting it aside if it was the result of illegally, irregularity in vital matters, or fraud"]; Cupo v. McGoldrick, 278 App.Div. 108, 112, 103 N.Y.S.2d 633 [1st Dept.1951] ). This power is "required by necessary implication" of the Correction Law, especially given that "the Legislature has delegated administrative duties in broad terms, leaving the agency to determine what specific standards and procedures are most suitable to accomplish the legislative goals" (see Matter of Mercy Hosp. v. New York State Dept. of Social Servs., 79 N.Y.2d 197, 203-04, 581 N.Y.S.2d 628, 590 N.E.2d 213 [1992]; see also Matter of City of New York v. State of New York Commn. on Cable Tel., 47 N.Y.2d 89, 92-93, 416 N.Y.S.2d 786, 390 N.E.2d 293 [1979] ). We also find that respondents' interpretation of the Correction Law is not unreasonable and warrants deference (see Matter of Rosenblum v. New York State Workers' Compensation Bd., 309 A.D.2d 120, 122, 764 N.Y.S.2d 82 [2003], appeal withdrawn 2 N.Y.3d 737, 778 N.Y.S.2d 462, 810 N.E.2d 915 [2004] ).

Petitioners did not have a substantive due process right to the protection of conditional release orders that were illegal. None of them had a vested and legitimate claim of entitlement to release, nor has any of them shown that the government action "was wholly without legal justification" (see Bower Assoc. v. Town of Pleasant Valley, 2 N.Y.3d 617, 627, 781 N.Y.S.2d 240, 814 N.E.2d 410 [2004] ). As for procedural due process, the "basic requisites" are "notice and the opportunity to be heard" (CIBC Mellon Trust Co. v. Mora Hotel Corp., 296 A.D.2d 81, 91, 743 N.Y.S.2d 408 [2002], affd. 100 N.Y.2d 215, 762 N.Y.S.2d 5, 792 N.E.2d 155 [2003], cert. denied 540 U.S. 948, 124 S.Ct. 399, 157 L.Ed.2d 279 [2003] ). There is no constitutional guarantee of any particular form of procedure (see Kuriansky v. Bed-Stuy Health Care Corp., 135 A.D.2d 160, 171, 525 N.Y.S.2d 225 [1988], affd. 73 N.Y.2d 875, 538 N.Y.S.2d 233, 535 N.E.2d 286 [1988] ), and the appropriate process "will vary depending upon the governmental function involved as well as the substantiality of individual interests affected" (see Matter of Pannell v. Jones, 36 N.Y.2d 339, 342, 368 N.Y.S.2d 467, 329 N.E.2d 159 [1975] ). Even were we to find that any of the petitioners were denied an essential aspect of procedural due process (see Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 [1972] ), we would find that, under the circumstances of these cases, each of the petitioners had an adequate post-deprivation opportunity to be heard in these article 78 proceedings (see e.g. Matter of C/S Window Installers v. New York City Dept. of Design and Constr., 304 A.D.2d 380, 758 N.Y.S.2d 38 [2003] ). Finally, we reject the argument **11 that respondents should be estopped from finding *203 the conditional release orders invalid, since petitioners have not shown any grounds for departing from the settled rule that estoppel may not be invoked against a municipal agency to prevent it from discharging its statutory duties (see Parkview Associates v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372 [1988], cert. denied, appeal dismissed 488 U.S. 801, 109 S.Ct. 30, 102 L.Ed.2d 9 [1988] ).

13 A.D.3d 201, 788 N.Y.S.2d 8, 2004 N.Y. Slip Op. 09453