IN THE MATTER OF WALLMAN v. TRAVIS, 18 A.D.3d 304 [1st Dept 2005]

794 N.Y.S.2d 381

In the Matter of JAY A. WALLMAN, Appellant, v. BRION D. TRAVIS, Chairman

of the New York State Division of Parole, Respondent.

5405.

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

May 17, 2005.

Order and judgment (one paper), Supreme Court, New York County
(Joan A. Madden, J.), entered July 29, 2004, which, inter alia,
denied and dismissed the petition seeking to annul the
determination of the Parole Board denying petitioner's
application for parole release, unanimously reversed, on the law,
the facts and in the exercise of discretion, without costs, the
petition granted and the matter remanded to the Parole Board for
a de novo hearing on petitioner's application within 60 days of
the date of this order.

Before: Tom, J.P., Andrias, Ellerin, Gonzalez and Catterson,
JJ., concur.

Petitioner is a 64-year-old former attorney who began
practicing law in New York in 1964. For most of that time, he
practiced with a partner, Alan Wechsler, who ran the business of
the firm and did estate and commercial work. Petitioner's primary
business was trying medical malpractice cases. In the early
1990s, the firm suffered financial decline. Between June 1996 and
June 1999, petitioner and Wechsler stole $4.7 million from their
clients' escrow accounts. At least $2.7 million was used to pay
the firm's operating expenses and approximately $900,000 was used
by petitioner for his own personal expenses.

On June 29, 2000, petitioner pleaded guilty to one count of
grand larceny in the first degree and two counts of grand larceny
in the second degree. On August 14, 2000, he was sentenced to
three concurrent terms of 3 1/3 to 10 years. As a result of his
felony convictions, petitioner was disbarred (see Matter of
Wallman, 276 AD2d 40, 41 [2000]).

Ultimately, all but one of the firm's clients were reimbursed
by the Lawyers' Fund for Client Protection. In addition,
petitioner provided confessions of judgment to both the Lawyers'
Fund and the one unpaid client, and simultaneously waived his
interest in legal fees for any of his open cases.
Page 305

While in prison, petitioner had a good disciplinary record and
was granted an earned eligibility certificate pursuant to
Correction Law § 805. He also qualified for a merit time
certificate, which allowed him to appear before a Merit Board for
parole release consideration after serving five sixths of his
minimum term of imprisonment. The sentencing justice and the
prosecutor wrote letters opposing petitioner's application for
release. In November 2002, the Merit Board denied parole.

In June 2003, having served his minimum period of imprisonment,
petitioner became eligible for regular parole consideration
(Penal Law § 70.40 [1] [a]). He submitted numerous letters from
persons supporting his request for parole and appeared at a
hearing before the Parole Board held on June 17, 2003. In
response to questions from Parole Board members at the hearing,
petitioner attempted to explain the reasons for his misconduct
and how much money he was obligated to repay. In addition, he
expressed remorse for his acts and stated that he intended to
fulfill his repayment obligations by obtaining employment if
granted his release.

In its June 17, 2003 decision, the Parole Board denied
petitioner's request for parole release and ordered that he be
held for an additional 24 months. The Board determined that
"there is a reasonable probability that you would not live and
remain at liberty without violating the law and your release at
this time is incompatible with the welfare and safety of the
community."

The Board cited several factors for its decision, including
that the crime involved "misappropriating $4.7 million in client
funds," that the conduct took place over a long period of time,
that the thefts were from "injured people seeking legal redress
and compensation for their injuries" and involved violations of
the victims' trust, and that petitioner had "limited insight into
[his] ongoing crimes and victims of these crimes." Petitioner's
administrative appeal of the Board's determination was denied on
December 19, 2003.

Petitioner commenced the instant CPLR article 78 proceeding
alleging, inter alia, that the Board's denial of parole was
"irrational bordering on impropriety" and violated the pertinent
parole regulations. He also contended that the evidence at the
parole hearing failed to support the Board's conclusions and that
the Second Department's holding in a case with almost identical
facts (Matter of Marino v. Travis, 289 AD2d 493 [2001]),
mandated either petitioner's release or a de novo hearing before
the Board.

Supreme Court, in the judgment appealed from, denied and
Page 306
dismissed the petition. The court held that the Board relied on
the proper standard and considered the appropriate factors in
denying petitioner's release, such as the nature and seriousness
of the crimes, petitioner's institutional record and release
plans and his lack of insight and remorse. The court agreed with
the Board's argument that petitioner's claimed remorse was mere
"lip service," since petitioner had "attempted to downplay both
the seriousness of his crime and his role" by stating that all
but one of the victims "had been made whole" by the Lawyers' Fund
and that his law partner was more culpable. Although the court
acknowledged that a "rebuttable presumption favoring release" was
created by petitioner's certificate of earned eligibility, it
nevertheless concluded that the Board's determination that a
reasonable probability existed that petitioner would not remain
at liberty without violating the law and that his release would
be incompatible with the welfare of the community was not
irrational.

Finally, the court held that petitioner's reliance on the
Marino case was misplaced, since although that case also
involved the theft of client funds by an older attorney, since
disbarred, there were significant differences in the cases such
as the relative age and health of the attorneys, the amount of
funds misappropriated and the number of victims involved.

On appeal, petitioner argues that Supreme Court erred in
failing to conclude that the Board's denial of parole was
"irrational bordering on impropriety." Specifically, he argues
that the Board's conclusion that there was a reasonable
probability that he would violate the law if released and that
his release was incompatible with the welfare and safety of the
community is refuted by the hearing record and was influenced by
the Board's mischaracterization of the hearing testimony. He also
contends that the alleged distinctions cited by the Board and
court regarding the Marino case are factually incorrect. We
agree.

The statutory scheme imposing the standard for discretionary
release on parole is set out in detail in the Executive Law and
the accompanying regulations of the Division of Parole (see
Executive Law § 259-i [1] [a]; [2] [c] [A]; 9 NYCRR 8001.3,
8002.3 [a], [c]; see also Matter of Silmon v. Travis,
95 NY2d 470, 476-477 [2000]). The Board and the court correctly relied on
the above standards in this case. However, because petitioner was
granted an earned eligibility certificate, this case is also
governed by Correction Law § 805, a similar but not identical
provision.

Correction Law § 805 states in pertinent part: "Notwithstanding
Page 307
any other provision of law, an inmate who is serving a sentence
with a minimum term of not more than eight years and who has been
issued a certificate of earned eligibility, shall be granted
parole release at the expiration of his minimum term . . . unless
the board of parole determines that there is a reasonable
probability that, if such inmate is released, he will not live
and remain at liberty without violating the law and that his
release is not compatible with the welfare of society. Any
action by the commissioner pursuant to this section shall be
deemed a judicial function and shall not be reviewable if done in
accordance with law" (emphasis added).

As the terms of section 805 make plain, the receipt of an
earned eligibility certificate does not preclude the Board from
denying parole, nor does it eliminate the Board's discretion in
making the release decision (Matter of Barad v. New York State
Bd. of Parole, 275 AD2d 856 [2000], lv denied 96 NY2d 702
[2001]). However, some nisi prius courts have held, and we agree,
that the statute creates a presumption in favor of parole release
of any inmate who, like petitioner, has received a certificate of
earned eligibility and has completed a minimum term of
imprisonment of eight years or less (Matter of Marino v. Travis,
Sup Ct, Queens County, 2003, Index No. 15788/02, affd
13 AD3d 453 [2004]; Matter of Weinstein v. Dennison, 7 Misc 3d 1009[A],
2005 NY Slip Op 50518[u], *8 [Sup Ct, NY County 2005]).

Although the last sentence of section 805 states that any board
action pursuant to this section "shall be deemed a judicial
function and shall not be reviewable if done in accordance with
law," courts have interpreted this phrase, and a similar one in
Executive Law § 259-i (5), to mean that judicial intervention is
not warranted unless there has been "a showing of irrationality
bordering on impropriety" (Matter of Russo v. New York State Bd.
of Parole, 50 NY2d 69, 77 [1980]; Matter of Marino v. Travis,
289 AD2d at 493-494).

Petitioner has succeeded in demonstrating the irrationality of
the Board's determination in two significant respects. First,
petitioner has made a convincing showing that the Board's
"reasonable probability" determination was based almost
exclusively on the nature and seriousness of the offense, with
only a fleeting reference to the petitioner's alleged "limited
insight into [his] ongoing crimes and victims of these crimes." A
Parole Board's exclusive reliance on the severity of the offense
to deny parole not only contravenes the discretionary scheme
mandated by statute, but also effectively constitutes an
unauthorized resentencing of the defendant (see Matter of King v.
New York State Div. of Parole, 190 AD2d 423, 432 [1993], affd
Page 308

83 NY2d 788 [1994] [to deny parole based exclusively on the severity of
offense, there must be some significant aggravating or egregious
circumstances surrounding the commission of the crime];
Cappiello v. New York State Bd. of Parole, 6 Misc 3d 1010[A],
2005 NY Slip Op 51762[u] [2005] [Board's unjustifiable reliance
solely on the severity of the crime exceeded its administrative
discretion and was contrary to law]).

Moreover, the Board's perfunctory discussion of petitioner's
alleged lack of insight is contrary to the Court of Appeals'
decision in Matter of Silmon v. Travis (95 NY2d at 477), which
held that a petitioner's remorse and insight into his crimes are
highly relevant in evaluating an inmate's rehabilitative
progress, especially where, as here, the prisoner has otherwise
lived a law-abiding life and maintained a good prison record.
Despite the critical significance of these factors in evaluating
an inmate under the "reasonable probability" standard, the
Board's decision in this case offers no supportive facts
justifying its finding of lack of insight and remorse.

The Board's lack of supporting facts in its written decision
might be excused if the parole hearing record otherwise supported
its conclusion, but in this case it does not. The hearing
transcript contains numerous statements by petitioner
demonstrating his understanding of the harm caused by his
misconduct and his remorse for it. For instance, when asked by a
board member why he stole the money, he responded: "I have had
much time to think about for the past three years why I did what
I did, what motivated such egregious behavior. I know what I did
. . . I s[tole] my clients' funds and as a result of it I hurt my
clients and I inflicted pain on my family and those that I loved.
I believe that understanding why you do something, if you're
going to avoid doing it in the future, is what counts."

Later in his testimony, petitioner stated: "I lost sight of who
I was as a human being, what my values were, how I lived my life
and the kind of person that I was up until that point in time. I
forgot the meaning of my oath, my fiduciary □ oath. I forgot the
meaning of my sacred vow as a lawyer. I betrayed rather than
lived up to the trust that was [re]posed to me by my clients."

When petitioner was asked why he didn't simply allow his
business to fail, instead of resorting to stealing from his
clients, he responded: "I know I had no right to spend my
clients' money, even if I believed that I could pay it back. I
mean borrowing is all . . . that was the state of mind, that we
were borrowing[,] is stealing. And the irony of it is also I
wound up hurting the very, very same clients that for my whole
life I really
Page 309
battled valiantly, fought to protect their rights . . . [a]nd I'm
sorry for what I did. I really truly am sorry for what I did."

Based on our reading of the hearing record in its entirety, the
Board's conclusion petitioner's testimony demonstrated "limited
insight" into his criminal behavior is "irrational bordering on
impropriety." Although the Board's evaluation of the petitioner's
credibility is ordinarily entitled to deference, we find the
petitioner's testimony and the Board's conclusion virtually
irreconcilable. In order to justify its conclusion, the Board
would have had to discredit nearly every word of petitioner's
testimony, and there is simply no basis on this record to do
that.

Supreme Court's reasoning in affirming the Board's finding that
petitioner lacked insight fares no better when compared to the
actual record. The court found that petitioner's lack of remorse
or insight was shown by the way he "attempted to downplay both
the seriousness of the crime and his role," by noting that most
of the client victims had been "made whole" by the Lawyers' Fund
and by insinuating that his partner was more culpable. As
discussed below, these characterizations are based on distortions
of the hearing record.

As evidence of petitioner's alleged downplaying of the
seriousness of the offense, the Board argued that he "repeatedly"
noted that all but one of his former clients was "paid in full"
by the Lawyers' Fund. In fact, however, there are only two
references to the clients being paid in full, and, regrettably,
the Board failed to provide the context of these statements. The
record shows that petitioner's statements were in response to
specific questions by a board member regarding his plans for
future employment and how much money he actually owed. From the
context, it is obvious that petitioner was fully cognizant of his
own repayment obligations, as confirmed by his subsequent
acknowledgment that he is liable for the amounts paid to the
victims by the Lawyers' Fund. Thus, far from "repeatedly"
minimizing his conduct, petitioner merely answered the questions
put to him, while consistently acknowledging his outstanding
personal obligations. The court erred in finding a lack of
insight on this basis.

The record also belies the court's finding, advocated by the
Board, that petitioner tried to minimize his role by shifting the
blame to his partner. The Board focused on petitioner's testimony
that his partner was the one who "ran the business" while he "was
on the outside trying cases." Again, the Board and the court
ignored the context by failing to note that these partial quotes
were in response to the question: "Who were the partners in the
business?" Petitioner's complete answer was: "I
Page 310
had one partner. His name was Alan Wexler (sic). He was the
administrative partner. He ran the business and I basically was
on the outside trying cases." This statement, by itself, does not
evince an intent on petitioner's part to blame his partner for
his own criminal acts, especially since he freely admitted
elsewhere in his testimony that he stole money for personal
reasons totally unrelated to the administration of the firm's
business.

As should be plain from the above, the court's conclusions
regarding lack of insight and remorse were based on an inaccurate
reading of the record (see Matter of EK v. Travis,
7 Misc 3d 1031[A], 2005 NY Slip Op 50840[u] [Sup Ct, Albany County,
Sheridan, J., 2005] [Board's reasons for denial were "flawed" in
part because of inaccuracies in Board's description of
petitioner's criminal history]; cf. Matter of Hancher v. Travis,
1 Misc 3d 903[A], 2003 NY Slip Op 51483[u] [2003] [parole release
not irrational where record belies victims' representatives'
argument that inmate failed to admit guilt at hearing]). Since
the factual basis underlying the Board's conclusion that
petitioner lacked insight into his crimes has been discredited,
the Board's finding of lack of insight cannot stand. Accordingly,
as the sole remaining basis for the Board's denial was the
seriousness of the offense, such conclusion was irrational
bordering on impropriety (see Matter of Weinstein v. Dennison,
2005 NY Slip Op 50518[u], * 9 [Sup Ct, NY County 2005]).

The Board's decision to deny parole in these circumstances
finds no support in the court's flawed attempts to distinguish
the Marino decisions (Matter of Marino v. Travis, Sup Ct,
Queens County, 2001, Index No. 22169/00, affd 289 AD2d 493
[2001]; Matter of Marino v. Travis, Sup Ct, Queens County, 2003,
Index No. 15788/02, affd 13 AD3d 453 [2004]). In Marino, a
78-year-old attorney was convicted of stealing a substantial sum
of money from client escrow accounts, just as petitioner was. The
similarity continues: Marino received an indeterminate sentence
of 3 to 9 years, he was disbarred after his felony conviction, he
was a model prisoner and had received an earned eligibility
certificate and, having completed his minimum term of
imprisonment, he sought parole release pursuant to Correction Law
§ 805 (see 13 AD3d at 453).

The Parole Board denied Marino's request, finding a reasonable
probability that he would violate the law and be a threat to the
community if released, but the trial court found such
determination to be irrational and granted his CPLR article 78
petition. It remanded the matter to the Parole Board for a de
novo hearing, which determination was affirmed by the Second
Department (289 AD2d 493 [2001]).
Page 311

After the appellate decision, Marino came up for parole on
three separate occasions and was denied release each time, based
on essentially the same evidence. Supreme Court again held that
the board had acted irrationally, and the Board appealed. The
Second Department affirmed for the second time, finding that the
Board's determination was not based on any new evidence, and this
time, the Court ordered Marino's release instead of a de novo
hearing (13 AD3d 453 [2004]).

In the instant case, the Board and the court found Marino
distinguishable because of the differences in "their relative
ages and health; in the amount of funds misappropriated; and in
the number of victims." With the exception of the age factor,
none of these alleged distinctions are supported by the evidence
in the respective records. The state of Marino's health at the
time of the parole denial is disputed by the parties herein,
rendering a comparison with this case impossible. Further, while
the Board argued in this case that Marino's theft of $50,000
pales in comparison to the $4.7 million stolen by petitioner, the
record shows that the $50,000 figure cited by the Board reflects
the statutory amount charged in the Marino indictment (see
Penal Law § 155.40 [1]), not the actual amount stolen. Indeed,
there is a reference elsewhere in the Marino record that Marino
stole "millions," bringing the amount much closer to that
involved in the instant case. Finally, the number of victims
cannot be a distinguishing factor between the two cases since
both records reveal "multiple victims." These erroneous or
unsubstantiated distinctions provide no basis to deprive the
Marino decisions of precedential force in the instant context.

In sum, because the Board's conclusion that a "reasonable
probability" existed that petitioner would violate the law and be
a threat to the community if released was based solely on the
nature and severity of his crimes, it is "irrational bordering on
impropriety" and must be annulled. A de novo hearing is required
at which the Board must consider the appropriate factors in light
of the "reasonable probability" standard under Correction Law §
805 (see Cappiello, supra [Board's role is to evaluate inmate's
current danger, not to resentence him by substituting its own
opinion of the severity of his crime for that of the court]).
Further, the Board's determination must be stated in
nonconclusory terms, as the statute requires (Executive Law §
259-i [2] [a]).

In light of the foregoing, it is unnecessary to address
petitioner's additional contention that the Board's determination
violated the pertinent parole regulations (see 9 NYCRR 8001.3,
8002.3).
Page 312

IN THE MATTER OF MARINO v. TRAVIS, 13 A.D.3d 453 [2d Dept 2004]

785 N.Y.S.2d 54

In the Matter of FRANK MARINO, Respondent, v. BRION TRAVIS, Appellant.

2003-02361.

Appellate Division of the Supreme Court of New York, Second Department.

December 13, 2004.
Page 454

In a proceeding pursuant to CPLR article 78 to review a
determination of Brion Travis, as Chairman of the New York State
Division of Parole, dated April 9, 2002, which, after a hearing,
denied the petitioner's application to be released to parole, the
appeal is from a judgment of the Supreme Court, Queens County
(Weiss, J.), dated March 11, 2003, which granted the petition,
annulled the determination, and directed the petitioner's release
on parole.

Before: Ritter, J.P., Krausman, Luciano and Cozier, JJ.,
concur.

Ordered that the judgment is affirmed, without costs or
disbursements.

In 1997 the petitioner Frank Marino, a disbarred attorney in
his mid-80s (see Matter of Ehman, 220 AD2d 145 [1996]), was
convicted of two counts of grand larceny in the second degree
arising from the systematic theft by him and his wife, as
attorneys, of significant amounts of assets from friends and
clients. He was sentenced to an indeterminate term of
imprisonment of three to nine years. In January 2000, after the
petitioner completed his minimum sentence and received a
certificate of earned eligibility (see Correction Law § 805),
he was denied release on parole by the New York State Division of
Parole (hereinafter the Parole Board). The Parole Board stated,
"[a]fter a careful review of your entire record and this
interview, it is the determination of this Panel that if released
at this time there is a reasonable probability that you would not
live and remain at liberty without violating the law and your
release at this time is incompatible with the welfare and safety
of the community." That determination was reviewed in a
proceeding pursuant to CPLR article 78 in 2001. This Court
affirmed a judgment of the Supreme Court finding the Parole
Board's determination to be irrational bordering on impropriety
and remitting the matter to the Parole Board for a de novo
hearing (see Matter of Marino v. Travis, 289 AD2d 493 [2001]).
The petitioner has now appeared before the Parole Board on three
subsequent occasions. Each time, release on parole has been
denied for the reasons stated above, without new or additional
relevant evidence, or any other submission in support of the
determination. There was evidence that the petitioner was placed
in a work release program in which he successfully participated.
The petitioner commenced this proceeding pursuant to CPLR article
78 to challenge the Parole Board's latest denial of release on
parole. The Supreme Court, finding the determination was
irrational bordering on impropriety, directed that the petitioner
be released on parole. We affirm.

At oral argument, this Court was informed that during the
pendency of this appeal, the petitioner was released to parole on
Page 455
a subsequent application. Thus, because any determination by this
Court will not affect the rights of the parties with respect to
this controversy, the appeal would ordinarily be dismissed as
academic (see Matter of Hearst Corp. v. Clyne, 50 NY2d 707
[1980]). However, because the substantial issues presented are
likely to recur, constituting an exception to the mootness
doctrine, we reach the merits (see id.).

At the time of the determination under review, Correction Law §
805 provided in relevant part as follows: "an inmate who is
serving a sentence with a minimum term of not more than six years
and who has been issued a certificate of earned eligibility,
shall be granted parole release at the expiration of his minimum
term . . . unless the board of parole determines that there is a
reasonable probability that, if such inmate is released, he will
not live and remain at liberty without violating the law and that
his release is not compatible with the welfare of society. Any
action by the commissioner pursuant to this section shall be
deemed a judicial function and shall not be reviewable if done in
accordance with law." Correction Law § 805 was enacted as part of
an omnibus bill addressing overcrowding in correctional
facilities (see L 1987, ch 261; Pelgrin, Practice Commentaries,
McKinney's Cons Laws of NY, Book 10B, Correction Law § 805 [2003
Pocket Part]). Upon review, judicial intervention with a Parole
Board determination is warranted only upon a showing of
irrationality bordering on impropriety (cf. Matter of Russo v.
New York State Bd. of Parole, 50 NY2d 69, 77 [1980]; see Matter
of Silmon v. Travis, 95 NY2d 470, 476 [2000]; Matter of Richards
v. Travis, 288 AD2d 604, 605 [2001]; Matter of Thomas v. New York
State Div. of Parole, 286 AD2d 393, 394 [2001]; Matter of
Heitman v. New York State Bd. of Parole, 214 AD2d 673 [1995];
Executive Law § 259-i).

As noted, we previously found that the Parole Board's
determination was irrational bordering on impropriety.
Consequently, the Parole Board should not thereafter have denied
the petitioner release on parole based on the same reason without
specifying new or additional relevant evidence in support of the
determination. Rather, by the plain language and mandate of
Correction Law § 805, the petitioner should have been released to
parole.

The respondent's remaining contentions are without merit.

HARRIS v. DIV. OF PAROLE, 211 A.D.2d 205 [3d Dept 1995]

628 N.Y.S.2d 416

In the Matter of THEODORE HARRIS, Petitioner, v. NEW YORK STATE DIVISION OF

PAROLE et al., Respondents.

Appellate Division of the Supreme Court of New York, Third Department.

June 8, 1995

Appeal from the Appellate Division of the Supreme Court in the
Third Judicial Department.
Page 206

Theodore Harris, Wallkill, petitioner pro se.

Dennis C. Vacco, Attorney General, Albany (Troy J. Oechsner
of counsel), for respondents.

CREW III, J.

Petitioner, serving consecutive indeterminate terms of
imprisonment of 2 to 4 years, became eligible for parole in
August 1993 and, in accordance with Executive Law § 259-i (2)
(a), appeared before two members of the State Board of Parole
seeking release. Petitioner's request for parole was denied.[fn*]
Following an unsuccessful administrative appeal, petitioner
commenced this CPLR article 78 proceeding challenging the Board's
determination.

Initially, we note that inasmuch as this proceeding does
not raise a question of substantial evidence, Supreme Court erred
in transferring it to this Court. In the interest of judicial
economy, however, we will retain jurisdiction and address the
merits (see generally, Matter of Blackshear v. Coughlin,
185 A.D.2d 493, 494, n).

Based upon our review of the record as a whole, we are
persuaded that the initial decision rendered by the Board was
arbitrary and capricious and, further, that the administrative
appeal was not conducted in accordance with the applicable
regulations. Accordingly, the determination must be set aside
(see, CPLR 7803 [3]). As a starting point, we agree with
petitioner that the record reflects bias on the part of the
Board; indeed, the tenor of the Board members' comments and
questions at times bordered on hostility. Although respondents
contend that, because petitioner's interview with the Board did
not constitute an adjudicatory hearing, he was not entitled
Page 207
to a fair and impartial decision, we find this argument to be
specious. Moreover, even accepting respondents' assertion that
the Board was not required to consider, much less be bound by,
the sentencing Judge's recommendation in this matter, which was
favorable to petitioner, we are of the view that the Board's
apparent refusal to even review the document prior to rendering a
determination further reflects bias against petitioner.

Additionally, it is readily apparent that the administrative
appeal process was flawed. In accordance with the regulations, an
appeal from the denial of a release request may be taken to "an
appellate panel" consisting of three members of the Board, none
of whom may have participated in the decision from which the
appeal is taken (see, 9 NYCRR 8006.4 [d]). The appellate panel
may vote to affirm, modify or reverse the Board's decision
(see, 9 NYCRR 8006.4 [e]), and the appeal itself is determined
by a majority vote of the panel (see, 9 NYCRR 8006.4 [d]).

Here, respondents concede that the three members of the
appellate panel voted upon petitioner's appeal on three separate
days, without ever meeting as a group to discuss the appeal, but
contend that the regulations did not require that the panel meet
collectively to consider the merits of the underlying appeal. We
disagree. The relevant regulations plainly evince an intent that
the appellate panel meet and collectively determine appeals
(see, e.g., 9 NYCRR 8006.4 [b] ["(a)ppellate panels" normally
convene once a week]; 8006.4 [g], [h] [discussing determination
rendered by "an appellate panel"]). Moreover, permitting the
individual members of the appellate panel to reach a
determination in a vacuum without the benefit of discussing a
particular appeal with each other would, in our view, seriously
undermine the appeal process. Accordingly, in light of the
foregoing, we conclude that petitioner is entitled to a de novo
release interview before different Board members in accordance
with Executive Law § 259-i (2) (a). Petitioner's remaining
contentions have been examined and found to be lacking in merit.

MIKOLL, J.P., MERCURE, CASEY and YESAWICH JR., JJ., concur.

Adjudged that the determination is annulled, without costs, and
petition granted to the extent that petitioner is entitled to a
de novo release interview before different members of the State
Board of Parole.


[fn*] Petitioner's next scheduled appearance date before the
Board is August 1995.