160965/2017
NYSCEF: 04/27/2018

INDEX NO.

NYSCEF DOC. NO.

RECEIVED

39

SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY

. KELLEY

N. JOHN

PRESENT:

J.S.C.

PART
Just/ce

-" "~'. "~+~~F l+APPW~g~afyP
Sybil. ~a
~'

INDEX NO.

Ic,

HFvpeEf

5T~~oF ~AALE

The following papers, numbered 1
Notice of Motion/Order
Answering

IWOTION DATE

Affidavits

to,
—

to Show Cause

MOTIOii SEC .NO.

g~

were read on this motion to/for

Affidavits

—Exhibits

) No(s).

—Exhibits

) No(sj.
) Nofs).

Replying Afiidavits

Iu

V
I
CO

0
I-

cx',

co

W. X
0
u. co

IW

co
Lll
CV

co

S

R

I

~
0
o ~
w

cn

xm
0
0

0"
Dated:

1. CHECKONE' .....,... ..

. ., .............,................. .

2.

CHECK AS APPROPRiATE:

3.

CHECK IF APPROPRIATE'

..., .......................INOTION

... Q

CASE DISPOSED

IS:

GRANTED

SETTLE ORDER
DO NOT POST

1 of 9

Q
DENIED

NON-FINAL DISPOSITION

GRANTED IN PART

OTHER

SUBMIT ORDER
FIDUCIARY APPOINTIIENT

REFERENCE

 160965/2017
NYSCEF: 04/27/2018

INDEX NO.
NYSCEF DOC. NO.

39

RECEIVED

SUPREME CoURT
CoUNTY QF NEw

oF THE STATE oF NEw YoRK
YoRK: PART 56

IN THE MATTER OF THE APPLICATION OF

JUDITH CLARK,

Index No. 160965/2017
Petitioner,
FOR

A JUDGMENT PURSUANT TO

CPLR ARTICLE 78

-against-

DECISION AND ORDER

NEW YORK STATE BOARD OF PAROLE,

HON. JOHN

J. KELLEY

Petitioner Judith Clark's Article 78 petition challenging the denial
parole release by Respondent New York State Board

of her application for

of Parole ("Parole Board" ) is granted.

Ms. Clark is incarcerated due to a 1982 conviction based on her role as a driver in an

of a Brinks armored truck

armed robbery

in Rockland County that resulted in the death

people, two of whom were police officers. Considering herself a revolutionary
the government,

ivis. Clark represented

district attorney's heightened

in conflict with

herself at trial and, in rejecting the court's authority,

mounted no real defense to the charges against her. Her participation

opening and closing statements

of three

and calling a single witness.

sentence recommendation,

three consecutive 25-years-to-life sentences.

at the trial was limited to

She even failed to oppose the

thus paving the court's;vay to imposing

In sentencing Ms. Clark, the court expressed the

view that, given her crimes and conduct during the trial, she was irredeemable.

By most accounts, however, lvis, Clark has undergone a remarkable transformation
the three decades during which she has been incarcerated.

Ms. Clark has taken responsibility

her actions, expressed remorse, and tried to improve the lives
many others,

over

of her fellow prisoners, as well as

In December 2016, Governor Andrew M. Cuomo granted Ms. Clark clemency

2

of

9

for

 160965/2017
NYSCEF: 04/27/2018

INDEX NO.

NYSCEF DOC. NO.

39

RECEIVED

based on her "exceptional strides in self-development

and improvement.

Cuomo commuted Ms, Clark's sentence by reducing its minimum
her eligible for parole for the first time in
On April 5 and April 6,

" In doing

so, Governor

term to 35 years, thus making

2017.

2017, Ms. Clark appeared before the Parole Board for an
eight hours,

interview that lasted approximately

The topics of discussion included all aspects of

Ms, Clark's case, such as her early life, her criminal history, the subject crime, her trial, her
sentencing, her institutional

incarceration.

history, and her record

of achievement

and service since her

On April 20, 2017, the Parole Board issued its decision denying Ms. Clark's

parole application.

and did not depart from, Ms. Clark's

The Parole Board acknowledged,

favorable risk assessment as documented

by her achievements,

good work, and expressions of

remorse for her actions; nonetheless, the Parole Board stated that it "reviewed boxes
support and boxes

of opposition"

that includes statements

of public

and was "persuaded against release by opposing information

from former and current officials, and statements from survivors and

affected parties found in pre-sentence records, sentencing minutes and other public records.

" In

this regard, the Parole Board stated:

"We do not depart from your favorable risk assessment; however, we do find that
your release at this time is incompatible with the welfare of society as expressed
directly by relevant officials and thousands of its members, and that it would
deprecate the seriousness of your crimes as to undermine respect for the law. You
are still a symbol of violent and terroristic crime. Perhaps the transcript of our
interview will allow parties, whose statements we must consider, to read about your
ongoing personal evaluation for the first time.

"

Although the Parole Board acknowledged

that Governor Cuomo granted Ms. Clark clemency, it

seemed to give little weight to the Governor's commutation

of her sentence

in light

of the Parole

Board's assertion that it considered substantial additional information that "was created and
submitted pursuant

to jitsj unique process.

"

3

of

9

 160965/2017
NYSCEF: 04/27/2018

INDEX NO.

NYSCEF DOC. NO.

39

RECEIVED

On December

11, 2017, Ms. Clark initiated this Article 78 proceeding, arguing

that the

Parole Board's decision is arbitrary, capricious, and contrary to established law. In opposition,
the Parole Board argues that it properly considered all the relevant factors that the Executive

Law requires.

The Executive Law enumerates
should be released on parole, five

"(i)

eight statutory factors to determine whether an inmate

of which

are relevant to this case:

institutional
record including program goals and accomplishments,
achievements, vocational education, training or work assignments,
therapy and interactions with staff and inmates; .. . ; (iii) release plans including
community resources, employment, education and training and support services
available to the inmate .. .; (v) any statement made to the board by the crime victim
or the victim's representative, where the crime victim is deceased or is mentally or
incapacitated
. . . ; (vii) the seriousness
physically
of the offense with due
consideration to the type of sentence, length of sentence and recommendations of
the sentencing court, the district attorney, the attorney for the inmate, the presentence probation report as well as consideration
of any mitigating and
aggravating factors, and activities following arrest prior to confinement; and (viii)
prior criminal record, including the nature and pattern of offenses, adjustment to
any previous probation or parole supervision
and institutional
confinement"
(Executive Law $ 259-i [2] [c] [A]).
the

academic

A parole board must consider all eight factors, but it need not vive eoual weight to each factor

(see Matter

of King

v

NYS Oiv.

of Parole, 190 AD2d 423, 431 [1st Dept 1993], affd

83 NY2d

788 [1994]). In addition, a parole board is obligated to ensure that only the relevant guidelines
and factors are considered (id. at

791).

Although a parole board must consider the seriousness

do so in conjunction with the other factors enumerated

assessment analysis to determine

Executive Law

) 259-c [4]). The

board determinations

if an

it must, nevertheless,

in the statute, and it must conduct a risk

inmate has been rehabilitated

and is ready for release (see

legislative intent behind the Executive Law is to base parole

on a forward-looking

that focuses on the severity

of the crime,

paradigm, rather than a backward-looking

of the crime (see Platten

4

of

v

9

NFS M.

of Parole, 47 Misc

approach

3d 1059, 1062

 160965/2017
NYSCEF: 04/27/2018

INDEX NO.

NYSCEF DOC. NO.

39

RECEIVED

[Sup Ct, Sullivan Cty. 2015]). Thus, a parole board may not deny parole based solely on the
seriousness

of the offense (see Matter of Rossakis

2016]; Matter of Ramirez

v Evans,

v

NYS Bd. Of Parole, 146 AD3d 22 [1st Dept

118 AD3d 707 [2d Dept 2014]; Matter of Gelsomino

Bd, Of Parole, 82 AD3d 1097, 1098 [2d Dept

2011]). Rather, a parole board

risk and needs principles, and it must explain its reasons with particularity

risk-assessment

analysis. (Division

of Parole

Regulations

g

v

Nl'S

must be guided by

if it

departs from a

8002.2 [a]), If the record indicates

that a parole board may have considered factors not permitted under the statute and related

regulations,

the court must remand the matter for a new interview before a new parole board

(King, 83 NY2d at

791).

Ms. Clark asserts that the Parole Board

(1) failed to

factors by focusing almost exclusively on the severity
arrest and trial, and (2) improperly

applicable regulations

abide by the statutory Executive Law

of her crime

and her conduct during her

considered factors outside the scope

when it considered, inter alia, penal philosophy,

sentences on those convicted

of murder or felony

of the

statute and

the imposition

murder, and the consequences

of life

to society

if life

sentences are not imposed.
Under the unique factual circumstances

presented here, this court finds that the Parole

Board acted arbitrarily and capriciously in its determination

For instance, instead of considering the views

of the

of Ms. Clark's parole application.

sentencing court, as is required by

Executive Law $ 259-i (2) (c) (A), the Parole Board impermissibly

considered a letter from a

different jurist who sits in the Ninth Judicial District. The Parole Board treated this letter as
were from the sentencing

sentencing.

court; however, this jurist did not preside over Ms, Clark's trial or

Instead, this jurist was assigned by the administrative

"sentencing court's" view

if it

of Ms. Clark's parole

5

judge to provide the

eligibility because the sentencing judge retired

of

9

 160965/2017
NYSCEF: 04/27/2018

INDEX NO.

NYSCEF DOC. NO.

in

39

RECEIVED

2008. The letter which relied on hearsa~ from the trial judge and other unknovvn sources

strongly advocated against Ms. Clark's release:

"[t]o release this defendant now, after the decades of suffering by the families of
the victims, the verdict of a jury in a fair trial and the lawful, logical, appropriate
and just sentence by the trial judge, who was conversant with all the facts, would
make our judicial system the mockery that the defendant claimed it was all those
years ago. Is it now the standard that a defendant who expresses remorse after no
matter how many decades and no matter how heinous the crime, should then qualify
for release, even though the harm and suffering caused by her acts still exist?"
The Parole Board should not have considered this letter. The Executive Law's reference to the
sentencing court's recommendations

means the recommendations

of the judge

who imposed the

original sentence, not a jurist who did not participate in the original trial or sentencing.

In this

regard, although the sentencing judge may have retired, his opinion can be found in the same

sentencing minutes that the Parole Board referenced in its interview with Ms. Clark and in its
subsequent

decision.

Moreover, in light

of Governor Cuomo's

opinion, similar to other aggravating

grant

circumstances

considerations.

of Ms. Clark's

even the sentencing judge' s

from decades ago, has very limited value.

The Governor's decision to exercise his constitutional
removes the evaluation

of clemency,

authority to grant clemency, by its nature,

original sentence from typical Executive Law

This is because the Governor, in granting clemency, determined

years after Ms, C,ar

s sentencing, circumstances

developed that rendered the original sentence

unduly harsh, such as her remorse and rehabilitation,

which are things the sentencing judge could

not have foreseen when he imposed the original 75-years-to-life sentence,
commuting

that in the 35

This is not to say that

Ms. Clark's sentence minimizes the seriousness of her crimes, but it serves as a

strong counterweight
and the significance

to both the views

of the

of the

sentencing court, as expressed over 35 years ago,

original sentence.

6

of

9

 160965/2017
NYSCEF: 04/27/2018

INDEX NO.

NYSCEF DOC. NO.

39

RECEIVED

Further, the Parole Board erroneously

considered letters that it wholesale failed to

disclose to Ms. Clark in advance of her interview or subsequent administrative
to certain specific exceptions, an inmate is entitled to all the information
parole case record (see Division

of Parole

Regulations

$ 8000.5

provides that "[w]here a criine victim or victim's representative

parole board a written statement concerning the release
that individual's

the confidentiality

contained in his or her

[c] [1]), The Executive Law
. . . or other person submits to the

of an inmate,

name and address confidential" (Executive Law

added). Section 259-k

the parole board shall keep

( 259-i [2] [c] [B])(emphasis

of the Executive Law allows the Parole Board to make

of such records.

appeal. Subject

Under this authority, Division

of Parole

rules to maintain

Regulations (9

NYCRR) $ 8000.5 (c}(2) (i) (a) (3) provides that access to case records can be restricted or
withheld

only to the extent that the records contain "any information

result in harm, physical or otherwise, to any person.

redact or withhold records that could potentially

" Although

which

if disclosed

might

the regulation provides a basis to

endanger someone, no evidence in the record

suggests that the Parole Board undertook any analysis to determine whether making appropriate

redactions and thereafter disclosing the substance
harmed anyone, let alone the community

that the Parole Board arbitrarily

community.

of these letters to Ms. Clark

would have

at large. ' Without making such an analysis, it appears

decided to withhold all the letters that were submitted by the

Doing so is contrary to both the letter and the spirit

of the Executive Law

and its

regulations.

'

Even if the information that the Parole Board relied on could have been properly designated as confidential, the
Parole Board still was required by Division of Parole Regulations $ 8000. 5 to notify Ms. Clark of its intent to rely on
such information (see West v NYS Bd. of Parole, 41 Misc 3d 1214[A] [Sup Ct, Albany Cty. 2013] (holding that
confidential information, even when properly protected by the law, "certainly should not trump the statutory
requirement that the [Parole] Board's decision reveal the factors and reasons it considered in reaching its decision,
particularly when such consideration is mandated by statute"); Matter oIAlmonor v NYS Bd. of Parole, 16 Misc 3d
1126[A] [Sup Ct, NY Cty. 2007] ("Even though, on some occasions, 9 NYCRR 8000.5 allows respondent to
consider materials .„protected from a parole applicant's review, respondent would not have the right to keep the
fact of their consideration secret from the applicant" ).

7

of

9

 160965/2017
NYSCEF: 04/27/2018

INDEX NO.

NYSCEF DOC. NO.

39

RECEIVED

As it stands, the Parole Board's decision provides few specifics about the details or

content

of the letters. For example, the Parole Board indicated that it considered a strong letter

in opposition from a legislative body that sits more than

the crime and the current location

300 miles away from both the place of

of Ms. Clark's incarceration,

Such a letter, sent to the Parole

Board in what only can be presumed as being in an official capacity, should fall outside the
scope of reasonable community

opposition; yet, the Parole Board read it into the record and

appeared to have given it serious weight, nonetheless
minimum,

(see Appendix 168-169). Furthermore,

the Parole Board has not explained why the numerous

who personally

community.

considerations

know Ms. Clark are outweighed

letters

of support

by the opposition letters submitted

at a

from those
by the

The Parole Board must be careful not to be swayed by appeals that include
outside the scope

of the factors

outlined in the Executive Law (see e. g. King, 83

NY2d at 791). Without the court knowing the substance

of these letters, the Parole Board's

own

words and stated reliance on letters from public officials and others opposed to Ms, Clark's

release strongly signals that the Parole Board considered factors that are impermissible
statute, such as penal philosophy.

under the

As a result, this court finds from this this record that the

Parole Board's decision was arbitrary, capricious, and contrary to law.

Accordingly, it is hereby

OPMEPND that the petition is granted to the extent

of setting aside the

determination

by

the Parole Board denying Ms. Clark's parole; and it is further,

ORDERED that the matter is remitted to the respondent for a new interview before a new
panel

of the Parole Board; and it is further,

8

of

9

 160965/2017
NYSCEF: 04/27/2018

INDEX NO.

NYSCEF DOC. NO.

RECEIVED

39

ORDERED that said interview must be conducted within 60 days of the date of this
court's decision and order, and the Parole Board is directed to issue a parole decision within 30
days

of the date of that interview.

Dated: April 26, 2018

9

of

9