The NYS Parole Board's rescission of parole in the case of Pablo Costello has been upheld, in a December 27 court decision:
"It was within the Board's discretion to rescind parole in light of the substantial evidence of significant information not previously known by the Board."
But in disagreeing over whether belatedly submitted victim impact statements constitute new evidence, the judges in this case have highlighted an issue that may have to be reconsidered in the Court of Appeals.
Justice Edward Spain dissented, stating that in his view "... the record does not support the decision of respondent Board of Parole to order a rescission hearing nor does it reflect the presence of substantial evidence justifying the Board's decision to rescind parole."
He also gave the opinion that "Courts should be loathe to condone what could become a trend in the parole process in which certain victim impact statements are held back until after a decision to grant parole is made, forcing the Board to confront unabashed media frenzy, public pressure and familial outrage, and to then entertain newly drafted but belated victim impact statements aimed at undoing considered Board decisions awarding parole. Finally, those who oppose petitioner's parole release openly advocate the recurring position that an inmate convicted for the death of a law enforcement officer — even a nonshooter convicted of felony murder, as here — should never be released on parole. It bears emphasis that this was not and is not the law."
Pablo Costello's parole was revoked by the Board when surviving family members came forward to state their opposition to his release after parole had already been granted. Costello's appeal against this decision was supported by a joint amicus brief submitted by six former parole commissioners, urging the Appellate Division, Third Department, to hold the Board of Parole to a higher standard and prevent it from revoking an inmate's release simply because victims object after parole has been approved.
For further details, see:
Matter of Costello v. New York State Bd. of Parole 2012. NY Slip Op 09116 (Decided 27 December, 2012)
Upstate Panel Finds Board Had Right to Rescind Parole, by John Caher (New York Law Journal, December 28 2012)
Ex-Parole Commissioners Decry Rescission of 'Cop Killer' Release, by John Caher (New York Law Journal, November 26 2012)