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Parole-Appeals and
Revocations
| Many inmates in the NYS
Corrections system are eligible for parole before their full sentence
has been served. Technically, inmates who are paroled are still in the
"custody" of the NYS Department of Corrections. However, they are
serving the remainder of their sentence outside of prison and under the
supervision of the state. Parole is granted or denied following a
"parole hearing". Initial parole hearings are typically held after an
inmate has served the "minimum" part of an indeterminate sentence and at
least every two years, thereafter. Parole hearings are conducted by a
panel of three members of the NYS Board of Parole (BoP). Often they are
conducted by video conference, sometimes they are conducted in person by
the three member panel.
Inmates are permitted to testify on their own
behalf and present other evidence supporting their contention that they
should be granted parole. The BoP will review the nature of the
inmate's offense and other information contained in the inmate's Dept.
of Corrections record. Particular attention and emphasis will be paid
to the inmate's disciplinary record (while they have been incarcerated)
and to the whether or not the crime which they are serving time for was
violent or not and whether they are repeat offenders. Testimony of
victims can also be taken and can influence the BoP's decision to grant
or deny parole.
Inmates do not have a right to, or the option
of, being represented by a lawyer at a parole hearing. In fact, there
is no "right ot parole", Whether or not an inmate is granted parole is
at the "discretion" of the Board of Parole panel hearing each individual
application for parole. However, an attorney familiar with the process
and procedures of the Board of Parole can help an inmate prepared for
their hearing and assist in assembling supporting materials.
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Appealing Parole Board Denials
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Often inmates are not granted parole after their initial hearing
before the BoP. In fact, many inmates will be denied parole
after every hearing. Since the mid-90's parole rates have
plummeted, particularly for inmates serving time for what the
state considers a "violent" offense. For
more information about the NYS Board of Parole's changing
standards for parole, click here. If an inmate is
denied parole they do have a right to appeal that decision.
Inmates who wish to appeal their parole denial are required to
notify the BoP within 30 days of their receiving notice of
having their application denied. Normally, the written decision
provided to the inmate includes (on the back) a standard form
that can be completed by the inmate notifying the BoP of the
inmate's intent to appeal. In addition to having a right to
appeal a parole denial, an inmate has a right to be represented
by legal counsel for the appeal. If an inmate cannot afford to
retain private counsel, at the inmate's request counsel will be
appointed for them by the state. The appeal process consists of
a written legal memorandum being submitted to an wants to appeal
they have notify the BoP within 30 days of receiving their
parole denial. |
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Article 78 Proceedings
In the vast majority of cases Parole Appeals are denied
by the Division of Parole. A denial of a parole appeal is considered to be
an "exhaustion" of administrative remedies and entitles an inmate to ask a NYS
court to to review the Parole Board's action. The action that can be taken
is the filing of an Article 78 petition in the Supreme Court where
the inmate is incarcerated or in the county where the Parole Board action
occurred (normally, Albany County). The standard of review of an
administrative action is that in order for a court to order a new parole hearing
(or more rarely, order parole for an inmate) the BoP's actions must be shown to
have been "arbitrary and capricious" and "irrational bordering on impropriety".
These are very high standards and most Article 78 petitions do not succeed in
achieving an order for a new parole hearing or an order requiring parole.
However, there have been successful Article 78 proceedings that have resulted in
new parole hearings and, rarely an order directing the BoP to parole an inmate.
Article 78 proceedings do not qualify for legal assistance paid for by NYS.
Rather, inmates must either find the financial means to retain a private
attorney or find a private attorney (or legal services organization) that will
file the Article 78 petition pro bono (without charging a fee).
Parole Revocation
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If you would like a
consultation or wish to arrange for representation on any Social Security
matter, criminal matter, drawing up a living will, testamentary will, trust and
estate planning or health care proxy, you can contact Glenn W. Magnell at either
his Goshen or Cornwall offices.
Goshen Office:
162 Main Street, Goshen, N.Y. 10924
Phone:
845-294-0585
Fax:
845-926-4091
Cornwall Office:
151 Continental Road, Cornwall,
N.Y. 12518
Phone:
845-725-7935
Fax:
845-926-4091
Email:
gmagnell@midvalleylaw.com
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Click here for Goshen
Click
here for Cornwall
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