Petitioner is currently serving a sentence out of Queens County for the felony of Robbery in the First Degree in violation of Penal Law Section 160.15. Petitioner was sentenced on July 12, 1989, to an indeterminate period of incarceration of 8 to 16 years. The petitioner's conditional release date was February 4, 2010. The petitioner's conviction qualified him as a sex offender pursuant to Mental Hygiene Law [MHL] §10.03 (f).

On January 29, 2010 the New York State Attorney General applied for petitioner's civil commitment pursuant to MHL Article 10. The petitioner's release from the Department of Corrections (DOCS) was stayed pending a hearing on probable cause pursuant to MHL § 10.06.

On February 3, 2010 a member of the New York State Board of Parole imposed the following special condition on the petitioner's release from DOCS:

You shall not be released until such time as any residence that has been or will be approved for you can be evaluated by the Division of Parole in light of any determination made by a Court of competent jurisdiction pursuant to Article 10 of the Mental Hygiene Law.

On February 10, 2010, Supreme Court for Washington County conducted the probable cause hearing and found probable cause to believe that petitioner was a sex offender requiring civil management.

Petitioner continues to be confined in DOCS custody based upon the special condition.

Petitioner commenced an Article 78 proceeding seeking to annul the special condition issued by a member of the Parole Board on February 3, 2010. Respondents answered the petition and moved to dismiss. Petitioner cross-moved for a preliminary injunction.

The petitioner claims that the Parole Board's special condition violates the statutory requirements of Penal Law § 70.40(1)(b), (2) and MHL § 10.06(k), mandating petitioner's conditional release from DOCS and placement in an Office of Mental Health (OMH) secure treatment facility, pending an MHL Article 10 trial. Petitioner also claims that the Parole Board's special condition is arbitrary and capricious and violates the petitioner's constitutional rights.

Respondents, through the Attorney General, request dismissal of the petition based upon the petitioner's failure to exhaust his administrative remedies, failing to state a cause of action, and alleging that the New York State Division of Parole is authorized to impose special conditions of release on inmates seeking conditional release.

Parole release and conditional releases are distinct from one another. Parole release is discretionary with the Board of Parole (see Executive Law § 259-I, subd 2, par [c]; Penal Law, § 70.40, subd 1, par [a]; 9 NYCRR 8002.1). Conditional release, when applied for by the inmate, [*2]is mandatory "when the total good behavior time allowed to him, pursuant to the provisions of the correction law, is equal to the unserved portion of his maximum or aggregate maximum term." (Penal Law § 70.40, subd 1, par [b]) Whether or not "good time" is allowed is a decision, not of the Board of Parole, but of the Commissioner of Correction (Correction Law,

§ 803, subd 4). The Board of Parole, therefore, has no control over when an inmate is released on conditional release and cannot prevent such release. It must, however, set the conditions for such release and supervise each person upon release (Penal Law, § 70.40, subd 1, par [b]; Greeman v New York State Bd of Parole, 120 Misc 2d 959).

The Parole Board is authorized to impose a requirement of a suitable residence as a condition of a prisoner's conditional release. (Breeden v. Donnelli, 26 AD3d 660 [3d Dept. 2006]; Matter of Billups v New York State Div. of Parole, 18 AD3d 1085 [3d Dept. 2005]).

Accordingly, the special condition imposed by Parole was legal and valid on February 3, 2010. However, subsequent events now bring to question the validity of the special condition.

Effective April 13, 2007, Article 10 of the Mental Hygiene Law became the law of New York State in relation to the civil confinement or supervision of sex offenders. Specifically, MHL § 10.06(k) provides that once a court has determined probable cause to believe a respondent is a sex offender requiring civil management the court "shall order that the respondent be committed to a secure treatment facility designated by the commissioner for care, treatment and control" and shall not be released until completion of a trial under Article 10.

The respondents have moved to dismiss based upon petitioner's failure to exhaust administrative remedies. Normally, "one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law." Watergate II Apartments v. Buffalo Sewer Authority, 46 NY2d 52, 57 (1978). Petitioner also cites Watergate II Apartments for the proposition that exhaustion of administrative remedies is not required when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury. The respondents do not indicate what administrative remedies are available to the petitioner. An inmate does not have a right to appeal any parole decision regarding conditional release (see Executive Law, § 259-I, (4)). Petitioner has shown that it would be futile to attempt any action before the Parole Board. Petitioner also claims that the special condition is beyond Parole's grant of power in view of the statutory mandate of

MHL § 10.06(k). The issue before the court is not one involving the "expertise and judgment" (Watergate II Apartments, supra, p. 57) of the Parole Board, but is an issue of law regarding the validity of an administrative action that on its face now seems to conflict with a statutory mandate. Therefore, exhaustion of administrative remedies is not necessary before this court rules on petitioner's claims.

It is a fundamental principle of administrative law that an agency cannot promulgate rules or regulations that contravene the will of the Legislature (Weiss v City of New York, 95 NY2d 1 [2000]). If an agency regulation is "out of harmony" with an applicable statue the statute must [*3]prevail (Finger Lakes Racing Assn. v New York State Racing and Wagering Bd, 45 NY2d 471, 480-481). When the special condition by Parole was imposed on February 3, 2010, it was legal and valid based upon the holdings in Breeden and Billups. However, on February 10, 2010, when Supreme Court made a finding of probable cause under Article 10 of the MHL a clear conflict arose between the special condition imposed by parole and the express statutory language of

MHL § 10.06(k). Now, the statute must prevail over the previously imposed special condition of parole. Therefore, the petitioner's request to annul the special condition imposed by Parole on February 3, 2010, is granted, and respondent New York State Department of Correction, is hereby directed to commit the petitioner to a secure treatment facility designated by the Commissioner of the New York State Office of Mental Health and transfer of custody of petitioner from the New York State Department of Corrections to a secure treatment facility designated by the Commissioner of Mental Health shall be completed within 14 days from the date of this Order and the petitioner shall remain in the secure treatment facility until his trial is complete under Article 10 of the Mental Hygiene Law or until further order of this court or a court of competent jurisdiction.

Accordingly, it is

ORDERED AND ADJUDGED that the instant petition is granted.

This shall constitute the Decision, Order and Judgment of the Court. This Decision, Order and Judgment is being returned to the attorneys for petitioner. All original supporting documentation is being filed with the County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provisions of that rule relating to filing, entry, and notice of entry.

SO ORDERED AND ADJUDGED.

ENTER.

Dated:June 18, 2010

Albany, New York

Patrick J. McGrath

Supreme Court Justice

Papers Considered:

Order to Show Cause, dated April 2, 2010; Affidavit, Sheila E. Shea, Esq., dated April 2, 2010, with attached Exhibits 1, 2, 3.

Answer and Supporting Affirmation of Michael J. Connolly, Esq., dated May 18, 2010, with attached Exhibits A, B, C, D.

Petitioner's Reply Affirmation of David M. LeVine, Esq., dated May 24, 2010, with attached Exhibits 7, 8, 9, 10, 11.

Motion to Dismiss by Michael J. Connolly, Esq., dated April 26, 2010.

Order by Justice Stan L. Pritzker dated May 14, 2010.

Notice of Cross-Motion with Affirmation of David M. LeVine, Esq., dated May 5, 2010, with attached Exhibits 4, 5, 6.

Affirmation in Opposition to Cross-Motion with Affirmation of Michael J. Connolly, Esq., dated May 17, 2010.