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New York Ex Parolee's Discharge Reversed For Restitution Determination
Sullivan County (New York) District Attorney Stephen Lungen petitioned to vacate and reverse the State Division of Parole's (DOP) discharge of ex parolee Kera Peters. An increased restitution order was inadvertently not applied and her discharge precluded its payment. The petition was granted and remanded for a restitution determination.
Peters pled guilty to grand larceny and was sentenced to five to fifteen years imprisonment and $866,000 restitution in 2001. She appealed the denial of restitution remission and the court increased the restitution to $869,222 at a 2004 hearing. The new order was not filed with the State Department of Correctional Services. Peters was paroled in 2004 and the DOP discharged her in 2005, relinquishing further payment.
Lungen filed the petition arguing that State Executive Law § 259 j(2) provides "No such merit termination shall be granted unless...the parolee or releasee is otherwise able to comply with an order of restitution" and that her discharge was arbitrary and capricious. The DOP claimed that they inquired at the parole hearing and that no such order existed.
The Supreme Court of New York, Sullivan County, held that the DOP "knew, or should have known that a restitution order was forthcoming" because it was filed with the court clerk, district attorney and probation department, and that the discharge violated § 259 j(2). See: In re Lungen v. Dennison, 17 Misc. 3d 1126A, 851 N.Y.S.2d 70 (2007) (unpublished).
Peters pled guilty to grand larceny and was sentenced to five to fifteen years imprisonment and $866,000 restitution in 2001. She appealed the denial of restitution remission and the court increased the restitution to $869,222 at a 2004 hearing. The new order was not filed with the State Department of Correctional Services. Peters was paroled in 2004 and the DOP discharged her in 2005, relinquishing further payment.
Lungen filed the petition arguing that State Executive Law § 259 j(2) provides "No such merit termination shall be granted unless...the parolee or releasee is otherwise able to comply with an order of restitution" and that her discharge was arbitrary and capricious. The DOP claimed that they inquired at the parole hearing and that no such order existed.
The Supreme Court of New York, Sullivan County, held that the DOP "knew, or should have known that a restitution order was forthcoming" because it was filed with the court clerk, district attorney and probation department, and that the discharge violated § 259 j(2). See: In re Lungen v. Dennison, 17 Misc. 3d 1126A, 851 N.Y.S.2d 70 (2007) (unpublished).
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Related legal case
In re Lungen v. Dennison, 17 Misc. 3d 1126A, 851 N.Y.S.2d 70 (2007)
| Year | 2007 |
|---|---|
| Cite | 17 Misc. 3d 1126A, 851 N.Y.S.2d 70 |
| Level | State Trial Court |
In the Matter of the Application of Stephen F. Lungen in His Capacity as the District Attorney of Sullivan County, Petitioner, For a Judgment under Article 78 of the Civil Practice Law and Rules against Robert J. Dennison, in His Capacity as Chairman of the New York State Division Of Parole, Respondent.
2622-07
SUPREME COURT OF NEW YORK, SULLIVAN COUNTY
2007 NY Slip Op 52152U; 17 Misc. 3d 1126A; 851 N.Y.S.2d 70; 238 N.Y.L.J. 98
October 13, 2007, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
COUNSEL: Hon. Stephen F. Lungen Click for Enhanced Coverage Linking Searches, Sullivan County District Attorney, Sullivan County Courthouse, Monticello, NY, Petitioner.
Attorney General for the State of New York, Poughkeepsie, NY, By Dewey Lee Click for Enhanced Coverage Linking Searches, AAG, of counsel, Attorney for Respondent.
Tendy & Cantor, Wappingers Falls, NY, By: William M. Tendy, Jr., Esq. Click for Enhanced Coverage Linking Searches, of counsel, Attorney for Defendant Kera Peters.
JUDGES: Hon. Frank J. LaBuda Click for Enhanced Coverage Linking Searches, Acting Supreme Court Judge.
OPINION BY: Frank J. LaBuda Click for Enhanced Coverage Linking Searches
OPINION
Frank J. LaBuda Click for Enhanced Coverage Linking Searches, J.
Petitioner seeks Article 78 relief vacating and reversing the July 16, 2005 determination by the New York State Division of Parole (Parole) granting presumptive release and discharging Defendant Kera Peters (Peters) from parole upon the grounds that said discharge violated New York State Executive Law §259-j and was arbitrary and capricious.
Respondent submits Verified Answer and Objections.
Defendant Peters submits affirmation in opposition.
Following submission herein this Court conducted a hearing which extended over a period of several months.
STATEMENT OF FACTS
Defendant Peters was indicted for grand larceny in the second degree on November 15, 2000. She entered a guilty plea to grand larceny in the second degree on March 7, 2001 and was sentenced on April 23, 2001 to a term of state prison of five to fifteen years and restitution of $ 866,000.00.
The Restitution Order (Order # 1) was entered on August 23, 2001 and served upon Albion Correctional Facility. Monies towards restitution were taken out of Peter's prison wages.
After this Court denied Peters' request for remission of the restitution the Appellate Division, Third Department, pursuant to Peters' appeal, remitted the matter back to this Court for a restitution hearing.
This Court held a restitution hearing and issued a Restitution Order dated July 6, 2004 in the amount of $ 869,222.
The petitioner concedes that, although said July 6, 2004 Restitution Order was filed with the Clerk of the Court, the Sullivan County Probation Department and the Sullivan County District Attorney, it was not filed with the Department of Corrections.
Defendant Peters received Merit Release from prison and was placed on parole on July 16, 2004.
Defendant Peters was given presumptive release from parole supervision on July 16, 2005 without paying any further restitution.
ARGUMENT
Petitioner argues two points; 1. Defendant Peters presumptive release violates Executive Law §259-j(2); and 2. was arbitrary and capricious.
Petitioner concedes that the second Restitution Order dated July 6, 2004 in the amount of $ 869,222.00 was filed with the Sullivan County Court Clerk, the Sullivan County probation Department and the Sullivan County District Attorney but was not filed with the New York State Department of Corrections.
However, given the large amount of Restitution Order # 1 ($ 866,000.00)from which prison wages were deducted from the defendant until the Appellate Division sent the restitution issue back to the Sullivan County Court for a new hearing, the Division of Parole knew, or should have known that a new Restitution Order was forthcoming.
That prior to granting presumptive release by the Division of Parole a check with either the Sullivan County Court Clerk's Office, the Sullivan County Probation Department or the Office of the Sullivan County District Attorney would have produced a copy of Restitution Order # 2 dated July 6, 2004 in the amount of $ 869,222.00 in the file of Defendant Peters in any of the above offices.
The respondent argues that there was testimony at the restitution hearing on the within petition that the Division of Parole checked with each above office and was told that no Restitution Order was in any file.
This Court finds that testimony not to be credible. Said testimony is bare on its face, does not recite the name any clerk spoken to in any of the offices and defies belief that each office file has a copy of said Restitution Order but not one office could locate said Restitution Order in its file.
THE LAW
Executive Law §259-j(2) states, in pertinent part, "? No such merit termination shall be granted unless the division of parole is satisfied that termination is in the best interests of society, and that the parolee or releasee, otherwise able to comply with an order of restitution?" (emphasis added.)
CONCLUSION
The Division of Parole knew, or should have known, that the original Restitution Order (Order # 1) in the substantial amount of $ 866,000.00 was to be replaced by a new Restitution Order following the Appellate Division decision to remit the restitution matter back to the Sullivan County Court.
Executive Law §259-j(2) mandates the Division of Parolee to adequately check the restitution status of a potential presumptive releasee prior to granting such release. The Division of Parole knew that the original restitution order was in a substantial amount ($ 866,000.00) and because the restitution issue was returned to this Court by the Appellate Division a new restitution order was forthcoming.
This Court finds that the presumptive release of Defendant was in violation of Executive Law §259-j(2) and was arbitrary and capricious.
Based upon the above, it is
ORDERED, that the petition is granted, and it further
ORDERED, that the presumptive release and termination of the parole of Defendant Kera Peters is vacated and reversed, and it is further
ORDERED, that the Sullivan County District Attorney shall serve a certified copy of this Court's Restitution Order dated July 6, 2004 in the amount of $ 869,222.00 upon the Department of Corrections and the Division of Parole forthwith, and it is further
ORDERED, that the Division of Parole shall make a de novo determination of presumptive release and parole determination on Defendant Kara Peters after receiving this Court's Restitution Order dated July 6, 2004.
This shall constitute the Decision and Order of this Court.
DATED: October 13, 2007
Monticello, NY 12701
Hon. Frank J. LaBuda
Acting Supreme Court Judge
2622-07
SUPREME COURT OF NEW YORK, SULLIVAN COUNTY
2007 NY Slip Op 52152U; 17 Misc. 3d 1126A; 851 N.Y.S.2d 70; 238 N.Y.L.J. 98
October 13, 2007, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
COUNSEL: Hon. Stephen F. Lungen Click for Enhanced Coverage Linking Searches, Sullivan County District Attorney, Sullivan County Courthouse, Monticello, NY, Petitioner.
Attorney General for the State of New York, Poughkeepsie, NY, By Dewey Lee Click for Enhanced Coverage Linking Searches, AAG, of counsel, Attorney for Respondent.
Tendy & Cantor, Wappingers Falls, NY, By: William M. Tendy, Jr., Esq. Click for Enhanced Coverage Linking Searches, of counsel, Attorney for Defendant Kera Peters.
JUDGES: Hon. Frank J. LaBuda Click for Enhanced Coverage Linking Searches, Acting Supreme Court Judge.
OPINION BY: Frank J. LaBuda Click for Enhanced Coverage Linking Searches
OPINION
Frank J. LaBuda Click for Enhanced Coverage Linking Searches, J.
Petitioner seeks Article 78 relief vacating and reversing the July 16, 2005 determination by the New York State Division of Parole (Parole) granting presumptive release and discharging Defendant Kera Peters (Peters) from parole upon the grounds that said discharge violated New York State Executive Law §259-j and was arbitrary and capricious.
Respondent submits Verified Answer and Objections.
Defendant Peters submits affirmation in opposition.
Following submission herein this Court conducted a hearing which extended over a period of several months.
STATEMENT OF FACTS
Defendant Peters was indicted for grand larceny in the second degree on November 15, 2000. She entered a guilty plea to grand larceny in the second degree on March 7, 2001 and was sentenced on April 23, 2001 to a term of state prison of five to fifteen years and restitution of $ 866,000.00.
The Restitution Order (Order # 1) was entered on August 23, 2001 and served upon Albion Correctional Facility. Monies towards restitution were taken out of Peter's prison wages.
After this Court denied Peters' request for remission of the restitution the Appellate Division, Third Department, pursuant to Peters' appeal, remitted the matter back to this Court for a restitution hearing.
This Court held a restitution hearing and issued a Restitution Order dated July 6, 2004 in the amount of $ 869,222.
The petitioner concedes that, although said July 6, 2004 Restitution Order was filed with the Clerk of the Court, the Sullivan County Probation Department and the Sullivan County District Attorney, it was not filed with the Department of Corrections.
Defendant Peters received Merit Release from prison and was placed on parole on July 16, 2004.
Defendant Peters was given presumptive release from parole supervision on July 16, 2005 without paying any further restitution.
ARGUMENT
Petitioner argues two points; 1. Defendant Peters presumptive release violates Executive Law §259-j(2); and 2. was arbitrary and capricious.
Petitioner concedes that the second Restitution Order dated July 6, 2004 in the amount of $ 869,222.00 was filed with the Sullivan County Court Clerk, the Sullivan County probation Department and the Sullivan County District Attorney but was not filed with the New York State Department of Corrections.
However, given the large amount of Restitution Order # 1 ($ 866,000.00)from which prison wages were deducted from the defendant until the Appellate Division sent the restitution issue back to the Sullivan County Court for a new hearing, the Division of Parole knew, or should have known that a new Restitution Order was forthcoming.
That prior to granting presumptive release by the Division of Parole a check with either the Sullivan County Court Clerk's Office, the Sullivan County Probation Department or the Office of the Sullivan County District Attorney would have produced a copy of Restitution Order # 2 dated July 6, 2004 in the amount of $ 869,222.00 in the file of Defendant Peters in any of the above offices.
The respondent argues that there was testimony at the restitution hearing on the within petition that the Division of Parole checked with each above office and was told that no Restitution Order was in any file.
This Court finds that testimony not to be credible. Said testimony is bare on its face, does not recite the name any clerk spoken to in any of the offices and defies belief that each office file has a copy of said Restitution Order but not one office could locate said Restitution Order in its file.
THE LAW
Executive Law §259-j(2) states, in pertinent part, "? No such merit termination shall be granted unless the division of parole is satisfied that termination is in the best interests of society, and that the parolee or releasee, otherwise able to comply with an order of restitution?" (emphasis added.)
CONCLUSION
The Division of Parole knew, or should have known, that the original Restitution Order (Order # 1) in the substantial amount of $ 866,000.00 was to be replaced by a new Restitution Order following the Appellate Division decision to remit the restitution matter back to the Sullivan County Court.
Executive Law §259-j(2) mandates the Division of Parolee to adequately check the restitution status of a potential presumptive releasee prior to granting such release. The Division of Parole knew that the original restitution order was in a substantial amount ($ 866,000.00) and because the restitution issue was returned to this Court by the Appellate Division a new restitution order was forthcoming.
This Court finds that the presumptive release of Defendant was in violation of Executive Law §259-j(2) and was arbitrary and capricious.
Based upon the above, it is
ORDERED, that the petition is granted, and it further
ORDERED, that the presumptive release and termination of the parole of Defendant Kera Peters is vacated and reversed, and it is further
ORDERED, that the Sullivan County District Attorney shall serve a certified copy of this Court's Restitution Order dated July 6, 2004 in the amount of $ 869,222.00 upon the Department of Corrections and the Division of Parole forthwith, and it is further
ORDERED, that the Division of Parole shall make a de novo determination of presumptive release and parole determination on Defendant Kara Peters after receiving this Court's Restitution Order dated July 6, 2004.
This shall constitute the Decision and Order of this Court.
DATED: October 13, 2007
Monticello, NY 12701
Hon. Frank J. LaBuda
Acting Supreme Court Judge