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New York Parole Board Repeatedly Held in Contempt; One Case Reversed on Appeal

In May 2016, the New York Supreme Court in Dutchess County held the State Parole Board (the Board) in contempt for failing to follow a court order governing a parole review.

New York state prisoner John Mackenzie, 69, was convicted in 1975 of the murder of a police officer during a burglary. He has served 40 years of a 25-year-to-life sentence and been eligible for parole since 1999. After being denied parole in December 2014, he sought review in the Supreme Court – a trial-level court – in an Article 78 proceeding.

The court found the Board had failed to comply with the 2011 amended Executive Law §259-c(4), which “requires the parole board to focus on an applicant’s rehabilitation and future rather than giving undue weight to the crime of conviction and to the inmate’s pre-incarceration behavior.”

Specifically, it found the Board’s “determination to deny parole release was issued in the form of a conclusionary statement that the petitioner’s release would not be compatible with the welfare of society and would depreciate the seriousness of his crimes of conviction as to undermine respect for the law.” To remedy the lack of a factual record supporting the denial of parole, the court ordered the Board to hold a new hearing.

That hearing occurred in October 2015, but the decision “was virtually the same as the 2014 decision.” As such, Mackenzie moved for the Board to be held in contempt.

At the contempt hearing, the Supreme Court noted Mackenzie’s “unblemished prison record for the past 35 years, his positive and productive use of his time including obtaining three degrees,” and his remorse that included work on a victims impact program. No one testified on behalf of the Board.

It was “undisputed that it is unlawful for the parole board to deny parole solely on the basis of the underlying conviction,” the Supreme Court found. “Yet the court can reach no other conclusion but that is exactly what the parole board did in this case.”

Mackenzie’s parole has been opposed by the family of the slain police officer, Matthew Giglio, as well as the Nassau County Police Benevolent Association.

“It is undisputed that this petitioner has a perfect institutional record for the past 35 years,” the court wrote. “This case begs the question, if parole isn’t granted to this petitioner, when and under what circumstances would it be granted?”

The court’s May 24, 2016 order held the Board in contempt and imposed fines “of $500 per day starting June 7, 2016 for each day until an actual de novo parole hearing is held and a decision issued in accord with the Executive Law §259-i(2).” It further ordered that none of the members of the 2014 or 2015 parole boards that denied parole could participate in the de novo hearing. Mackenzie was awarded $100 in costs; he was represented by attorney Kathy Manley. See: Mackenzie v. Stanford, Dutchess County Supreme Court (NY), Index No. 2789/15.

This was at least the second time since 2015 that the Board was held in contempt for denying parole. In the initial case, the Orange County Supreme Court granted a prisoner’s motion to hold the Board in civil contempt in a June 15, 2015 amended order, for failing to hold a new parole hearing that complied with the court’s instructions. That ruling was reversed by the Appellate Division on June 15, 2016.

The appellate court found “the petitioner was afforded a de novo hearing before a different panel of the Parole Board. Further, the determination made at the conclusion of the de novo hearing took into account his COMPAS assessment and other statutory factors.” Therefore, the prisoner had failed to show, by clear and convincing evidence, that the Board “violated a clear and unequivocal court order.” See: Matter of Cassidy v. New York State Bd. of Parole, 140 A.D.3d 953, 35 N.Y.S.3d 132 (N.Y. App. Div. 2d Dep’t 2016), appeal dismissed

 

Additional source: www.curenewyork.wordpress.com

Related legal case

Matter of Cassidy v. New York State Bd. of Parole


 

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