IN RE: Shua'Aib A. RAHEEM

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

IN RE: Shua'Aib A. RAHEEM, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.

Decided: October 29, 2009

Before:  MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ. Lawrence Mark Stern, New York City, for appellant. Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Zwack, J.), entered October 8, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, prohibit respondent from commencing a parole recession hearing.

In 1973, petitioner and three codefendants robbed a sporting goods store in Brooklyn and, during an ensuing standoff with police, petitioner and his cohorts held 12 people hostage and exchanged gunfire with police, killing one police officer and injuring two others.   Petitioner was convicted of depraved indifference murder, felony murder, manslaughter, assault and reckless endangerment, as well as several counts of criminal possession of a dangerous weapon, kidnapping, robbery and grand larceny.   He was sentenced to multiple concurrent terms of imprisonment, the aggregate of which is 25 years to life.

In November 2007, after his sixth appearance before respondent, petitioner-then age 58-was granted parole.   In granting parole, respondent noted petitioner's receipt of multiple college degrees, his leadership role in the prison's Youth Assistance Program, his work in the area of restorative justice, and a codefendant had been granted parole about 10 years earlier.   After being notified of petitioner's impending release, a number of the victims of petitioner's crimes were granted an opportunity to give statements to respondent.   During three days of victim impact hearings, two of the hostages, one of the injured police officers and the widow and other members of the slain officer's family gave statements describing the effect of petitioner's crimes upon their lives.   On December 26, 2007, after the initial hearing, respondent temporarily suspended petitioner's release.   On February 8, 2008, after the final hearing, respondent scheduled a recession hearing to consider whether to rescind its grant of parole, citing victim impact information provided at the hearings that was not previously known to it.   Petitioner then commenced this proceeding seeking to prohibit respondent from holding the scheduled rescission hearing, alleging that respondent's actions in initiating rescission proceedings were in excess of its jurisdiction.   Respondent has granted petitioner's continued requests for adjournments of the hearing.   Supreme Court ultimately dismissed petitioner's application and he now appeals.

 The extraordinary remedy of prohibition is available where a “body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction” (CPLR 7803[2];  see Matter of Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d 783, 786, 604 N.Y.S.2d 541, 624 N.E.2d 678 [1993] ).   Prohibition may be maintained in order to prevent a body or officer acting in a judicial or quasi-judicial capacity from acting in excess of its jurisdiction, provided there is a clear legal right to relief (see Matter of Garner v. New York State Dept. of Correctional Servs., 10 N.Y.3d 358, 361-362, 859 N.Y.S.2d 590, 889 N.E.2d 467 [2008];  Matter of Maisonet v. Merola, 69 N.Y.2d 965, 966, 516 N.Y.S.2d 646, 509 N.E.2d 341 [1987] ), but may not be used as a “means of seeking collateral review of a mere error of law in the administrative process” (Matter of Doe v. Axelrod, 71 N.Y.2d 484, 490, 527 N.Y.S.2d 368, 522 N.E.2d 444 [1988];  see Matter of Rush v. Mordue, 68 N.Y.2d 348, 353, 509 N.Y.S.2d 493, 502 N.E.2d 170 [1986];  La Rocca v. Lane, 37 N.Y.2d 575, 580, 376 N.Y.S.2d 93, 338 N.E.2d 606 [1975], cert. denied 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734 [1976] ).   Even when the requirements for a writ of prohibition are met, courts have discretion and “must consider other factors such as the gravity of the potential harm caused by the threatened excess of power or whether other proceedings in law or equity could correct the flaw” (Matter of Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d at 786, 604 N.Y.S.2d 541, 624 N.E.2d 678;  see Matter of Garner v. New York State Dept. of Correctional Servs., 10 N.Y.3d at 362, 859 N.Y.S.2d 590, 889 N.E.2d 467;   La Rocca v. Lane, 37 N.Y.2d at 579, 376 N.Y.S.2d 93, 338 N.E.2d 606;  Matter of Schmitt v. Skovira, 53 A.D.3d 918, 921, 862 N.Y.S.2d 167 [2008] ).   Where a petitioner “has access to another adequate legal remedy,” prohibition will not lie (Matter of Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d at 786, 604 N.Y.S.2d 541, 624 N.E.2d 678).

 Under 9 NYCRR 8002.5(b)(2)(i), parole release may be temporarily suspended or rescinded based upon “significant information which existed ․ where such information was not known by [respondent].” 1 Under Executive Law § 259-i, respondent must consider any statement made by the victims (see Executive Law § 259-i[2][c][A][v] ).  This Court has previously concluded that victim impact statements can constitute significant information which, when submitted to respondent even after its determination, may justify the temporary suspension or rescission of parole and, thus, respondent did not exceed its jurisdiction by scheduling a recession hearing here (see Matter of Pugh v. New York State Bd. of Parole, 19 A.D.3d 991, 992-993, 798 N.Y.S.2d 182 [2005], lv. denied 5 N.Y.3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133 [2005];  see also People ex rel. Victory v. Herbert, 277 A.D.2d 933, 716 N.Y.S.2d 254 [2000], lv. denied 96 N.Y.2d 705, 723 N.Y.S.2d 132, 746 N.E.2d 187 [2001] ).   As none of the victims had previously submitted any victim impact statements, their statements constituted significant information not previously known by respondent (see Matter of Pugh v. New York State Bd. of Parole, 19 A.D.3d at 993, 798 N.Y.S.2d 182;  see also Matter of Ortiz v. New York State Bd. of Parole, 239 A.D.2d 52, 56, 668 N.Y.S.2d 823 [1998], lv. denied 92 N.Y.2d 811, 680 N.Y.S.2d 457, 703 N.E.2d 269 [1998] ).   Notably, it does not appear that any of the victims who gave statements before respondent had ever been personally interviewed by the Probation Department.   Petitioner's argument that these statements are not new information because respondent could anticipate the impact of the crimes on the victims is without merit, as their actual subjective experience is clearly significant information previously unknown to respondent (see Matter of Pugh v. New York State Bd. of Parole, 19 A.D.3d at 993, 798 N.Y.S.2d 182; 9 NYCRR 8002.4[d][6] ).

 We also find unavailing petitioner's contention that respondent acted outside of its statutory and regulatory authority in holding victim impact hearings after a parole determination was made.   Neither Executive Law § 259-i nor CPL 440.50 requires that victims' statements be submitted prior to the parole determination to be considered (see e.g. Matter of Pugh v. New York State Bd. of Parole, 19 A.D.3d at 993, 798 N.Y.S.2d 182).   In fact, 9 NYCRR 8002.5 grants respondent the discretionary authority to rescind or modify any of its decisions (see 9 NYCRR 8002.5[d] ).  While 9 NYCRR 8002.4(d) contemplates that victim impact statements will precede parole determinations, it also provides that respondent may waive any filing deadlines or other limitations on the victims' right to be heard so as to “ ensur[e] that crime victims are treated with fairness, sensitivity and dignity” (9 NYCRR 8002.4[d] ).  Therefore, as these statutes and regulations are intended to facilitate the right of victims to be heard, limited only by practical considerations, they should not be interpreted so as to preclude victims from exercising the rights that they are meant to promote (see Matter of Pugh v. New York State Bd. of Parole, 19 A.D.3d at 993, 798 N.Y.S.2d 182; 9 NYCRR 8002.4[a] ).   Inasmuch as respondent has not exceeded, or threatened to exceed, its jurisdiction, Supreme Court properly denied petitioner's request for a writ of prohibition (see CPLR 7803[2];  Matter of Pugh v. New York State Bd. of Parole, 19 A.D.3d at 993, 798 N.Y.S.2d 182).

We have considered petitioner's remaining contentions and find they do not entitle him to a writ of prohibition.

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   While substantial evidence must support a decision to rescind parole (see Matter of Brooks v. Travis, 19 A.D.3d 901, 901-902, 797 N.Y.S.2d 183 [2005];  Matter of Bishop v. Smith, 299 A.D.2d 777, 778, 751 N.Y.S.2d 82 [2002]; 9 NYCRR 8002.5[d][1];  see also Matter of Rizo v. New York State Bd. of Parole, 251 A.D.2d 997, 997-998, 674 N.Y.S.2d 180 [1998], lv. denied 92 N.Y.2d 811, 680 N.Y.S.2d 457, 703 N.E.2d 269 [1998] ), only the existence of significant new information is required to support respondent's decision to temporarily suspend parole or hold a rescission hearing (see 9 NYCRR 8002.5[b][2][i] ).

SPAIN, J.

MERCURE, J.P., MALONE JR., KAVANAGH and McCARTHY, JJ., concur.