Preview
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SULLIVAN
2 ------------------------------------------------------------X
In the Matter of the Application of
3 CHAD A. CAMPBELL,
Petitioner,
4
For a judgment pursuant to Article 78 of the Civil
5 Practice Law and Rules,
6 -against- Index No.
E2021-855
7
TINA M. STANFORD, Chairwoman of the New York State
8 Board of Parole,
Defendant.
9 ------------------------------------------------------------X
ORDER TO SHOW CAUSE
10 PROCEEDINGS HELD VIRTUALLY
June 25, 2021
11
B E F O R E: HON. STEPHAN G. SCHICK,
12 Justice of the Supreme Court
13 A P P E A R A N C E S:
14 ORRICK HERRINGTON & SUTCLIFFE, LLP
Attorneys for the Petitioner
15 51 West 52nd Street
New York, New York 10019
16 BY: ROCHELLE F. SWARTZ, ESQ.
and ELYSE D. ECHTMAN, ESQ.
17 and SYDNEY HARGROVE, ESQ.
18 THE LEGAL AID SOCIETY
Criminal Appeals Bureau
19 Attorneys for the Petitioner
199 Water Street - 5th Floor
20 New York, New York 10038
BY: LAWRENCE T. HAUSMAN, ESQ.
21
LETITIA JAMES, ESQ.
22 New York State Attorney General for the Respondent
One Civic Center Plaza
23 Poughkeepsie, New York 12601
BY: HEATHER R. RUBINSTEIN, ESQ.
24 ________________________________________________________________
MALEGXY MELENDEZ
25 Senior Court Reporter
1 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 2
1 THE COURT: This is in the matter of Chad
2 Campbell against Stanford, Tina M. Stanford. This is the
3 return date on an order to show cause. This is being held
4 virtually due to the pandemic. I know there are a lot of
5 observers, but I believe, based upon the paperwork that's
6 been filed with this Court, the respondents are
7 represented by Heather Rubinstein, Assistant Attorney
8 General.
9 MS. RUBINSTEIN: Yes. Good morning, your Honor.
10 THE COURT: Good morning.
11 I believe the petitioner is represented by
12 Rochelle Swartz.
13 MS. SWARTZ: That's correct, your Honor. And my
14 colleague, Elyse Echtman, I believe, entered an appearance
15 as well.
16 THE COURT: All right. I just want one
17 speaking --
18 MS. SWARTZ: Sure.
19 THE COURT: -- so we have only two attorneys.
20 Otherwise, my experience is that every attorney wants to
21 get their word in, but we'd run out of time after a while.
22 MS. SWARTZ: Understood.
23 THE COURT: All right. So this is a petition
24 and I notice on the NYSCEF filing, there are a number of
25 motions returnable today.
2 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 3
1 Ms. Rubinstein, I understand that you wanted
2 additional time to file an answer and the record, but I do
3 have on my desk piles of records from the previous case
4 that was filed before me. I believe they would be all the
5 same records, would they not?
6 MS. RUBINSTEIN: They're not, your Honor.
7 THE COURT: There's additional records?
8 MS. RUBINSTEIN: I have not actually -- because
9 of the current state of affairs, I haven't actually seen
10 the complete record for the most recent interviews. So I
11 can't attest to whether or not the documents are different
12 or the same and whatever was before the board is the
13 record. And so clearly it would have been different than
14 what had been introduced prior because it's a subsequent
15 interview.
16 THE COURT: Ms. Swartz, in your letter, you
17 requested this Court go ahead today without the record.
18 Is that what you wish to do?
19 MS. SWARTZ: No, your Honor. Our understanding
20 was that the record remains the same. That this
21 hearing -- the hearing that -- or, rather, the interview
22 that we're challenging -- the seventh denial, as we're
23 calling it -- happened in August of 2020 and the records,
24 as far as we understand it and as far as we've been told,
25 are the same as they've been all along.
3 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 4
1 So we don't -- we're not aware of there being
2 extra documents, but certainly if there are, we would like
3 to see them.
4 MS. RUBINSTEIN: I don't know, your Honor.
5 Quite honestly, I haven't seen them, so I can't speak to
6 them.
7 THE COURT: Well, if this is an appeal from the
8 determination of the parole board in August of 2020, I
9 believe I have all those records. I have extensive
10 transcripts of the appearance before the parole board, I
11 believe, and the appearances by the victim's family and
12 very, very numerous amounts of transcripts, which I've
13 read through, albeit, I think, in January or February of
14 this year, but I must say, the contents were sufficiently
15 explicit. I have a very good memory of it. I might say
16 not necessarily a good thing, but I do remember it all.
17 And I believe, Ms. Swartz, you have a number of
18 motions on this new case that's here today, Index
19 Number 2021-855. What are your motions?
20 MS. SWARTZ: Your Honor, we have the petition.
21 And as far as I understand it, Ms. Rubinstein moved to
22 dismiss. We opposed that motion for dismissal. And then
23 we moved for leave from the Court to take discovery.
24 THE COURT: So you don't want a decision on the
25 petition? You want some discovery?
4 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 5
1 MS. SWARTZ: We would be eager to have a
2 decision if your Honor is prepared to make one today. In
3 the alternative, we would be eager to take discovery. We
4 were trying to present as full a record as possible to
5 your Honor in advance of, you know, taking up your time
6 for a hearing.
7 THE COURT: Well, I certainly have an extensive
8 amount of discovery information already and as far as the
9 motion to dismiss the petition, that is denied. I think
10 certainly the petitioner has presented a case. I must
11 admit that I have all of the prior discovery from the
12 prior application which was Index Number E2020-1001, I
13 believe.
14 MS. SWARTZ: That's correct, your Honor.
15 THE COURT: If you want more time to present
16 discovery, I would find it hard to deny that. However,
17 Ms. Swartz, as you've pointed out, this petitioner has
18 another scheduled appearance before the parole board in
19 August of this year, 2021. Is that not correct?
20 MS. SWARTZ: That's correct, your Honor. And
21 just -- I apologize for interrupting.
22 THE COURT: No. Go ahead. Go ahead.
23 MS. SWARTZ: Just to be clear, there are items
24 that it sounds like the Court has access to that we,
25 counsel for petitioner, do not have access to. So those
5 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 6
1 are the items that we were seeking in our motion for
2 discovery.
3 THE COURT: All the items I'm referring to were
4 from E2021-1001, I believe. I have some of them here on
5 my desk.
6 MS. SWARTZ: We do not have --
7 THE COURT: This isn't all of them, but it's my
8 understanding all of this was provided electronically in
9 the prior case.
10 MS. SWARTZ: We have seen everything that's on
11 the prior case's docket and I know Ms. Rubinstein served
12 us with some hard copy documents that it looked like she
13 was looking to seal in support of her motion to dismiss in
14 this case. For instance, one of the items that we would
15 be seeking in discovery, if your Honor is not prepared to
16 rule on the petition today, would be the victim impact
17 statements that you referenced. We do not have access to
18 those.
19 THE COURT: Well, no. There's -- the things
20 that I'm recalling were when the victims appeared in front
21 of the parole board and those transcripts. You do not
22 have that?
23 MS. SWARTZ: We do not. As far as I know -- and
24 I invite anyone on my team who knows otherwise to correct
25 me -- but as far as I know, I have not seen those and we
6 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 7
1 do not have access to them.
2 THE COURT: Is that so, Ms. Rubinstein?
3 MS. RUBINSTEIN: That is the respondent's
4 position. And I apologize, the discovery motion was not
5 scheduled to be heard today and respondents have not put
6 in an opposition on the calendar for another -- I believe
7 it's another week at least.
8 THE COURT: Well, I'm saving them time. You do
9 have a motion to seal and I don't know why that should not
10 be granted.
11 MS. RUBINSTEIN: The respondents take no
12 position with regard to petitioner's request to seal the
13 record.
14 THE COURT: All right. So that motion is
15 granted.
16 MS. SWARTZ: Thank you, your Honor.
17 THE COURT: That's on the other index number,
18 E2020-1001.
19 Ms. Rubinstein, can you submit an order to that
20 effect to the Court?
21 MS. SWARTZ: Your Honor, for clarification
22 purposes, was that petitioner's motion to file a single
23 exhibit under seal, Exhibit 13 to our petition, or was
24 that Ms. Rubinstein's request to file the exhibits to her
25 motion to dismiss under seal?
7 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 8
1 MS. RUBINSTEIN: We took no position with regard
2 to the sealing, your Honor. We were trying to protect the
3 record based on the outstanding motion.
4 MS. SWARTZ: Oh, understood.
5 MS. RUBINSTEIN: The outstanding motion to seal,
6 we did it in protection of the record just in case the
7 Court granted the motion.
8 MS. SWARTZ: Understood. Thank you,
9 Ms. Rubinstein.
10 THE COURT: All right. Ms. Rubinstein, just --
11 sometimes I hear you perfectly well, but sometimes it's
12 garbled and I don't know whether it's the closeness to the
13 mic or not.
14 So to get back to Ms. Swartz, you don't want a
15 decision today? And my question is: With the new parole
16 date in August of 2021 -- which is two months away. Less
17 than two months maybe. Do you have a date in August?
18 MS. SWARTZ: Our understanding is that the
19 parole board does not provide a date. They let the
20 petitioner know shortly before the hearing happens. Our
21 understanding is that it should be in early August.
22 THE COURT: All right. Well, if I adjourn this
23 argument, I mean, it might be after -- you know, it might
24 make this issue moot. Does that concern you?
25 MS. SWARTZ: That is the position that we have
8 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 9
1 taken, your Honor. We are here on this case appealing the
2 seventh denial. There's already been an eighth denial,
3 which I believe underlies Ms. Rubinstein's motion to
4 dismiss. Assuming this hearing in August goes forward,
5 there may very well be a ninth denial. At which point,
6 our understanding is that the attorney general's office
7 and respondent will take the position that the eighth
8 denial is then moot. We're definitely concerned about
9 that, but we wanted to present your Honor with options.
10 If you are prepared to rule today, we are very
11 eager to receive a ruling. If you are not prepared to
12 rule today, then we would like to pursue a discovery
13 motion and cross, I suppose, the bridge on any mootness
14 arguments concerning the eighth denial as they come up.
15 I will say, the other requests that we have
16 made, and we're prepared to file a formal motion or any
17 other documents that your Honor might need, but in light
18 of the timing of all of this and the fact that the
19 attorney general has moved to dismiss and taken the
20 position that the eighth denial is now the basis for
21 petitioner's hold, we would be eager to either amend our
22 petition or file another petition in the context of this
23 proceeding challenging the eighth denial and effectively
24 skipping the administrative appeal process, which would
25 take, our understanding is four months. So we're going --
9 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 10
1 I know it's complex.
2 THE COURT: I would suggest that the best
3 procedure to follow is to have a ruling today because you
4 have another hearing in August.
5 MS. SWARTZ: Sure.
6 THE COURT: And rather than having two prior
7 proceedings, one, the Court making the decision and the
8 other one doing an administrative appeal, doesn't sound to
9 me that's very economical. So, I mean, my question for
10 you, Ms. Swartz, is in regard to the current petition,
11 which is E2021-855. In order to vacate a parole decision,
12 this Court has to find that the parole board acted
13 arbitrarily and capriciously and irrationally basically.
14 Based upon the facts that are so clear here in this case,
15 how can the Court find that they acted irrationally?
16 MS. SWARTZ: That's our position, your Honor,
17 that there is no basis to uphold the decision. And if
18 your Honor's prepared to rule on the petition today, we
19 welcome that.
20 THE COURT: All right. Well, I'm prepared to
21 rule and I'm prepared to rule that there's insufficient
22 evidence to establish that the division of parole acted
23 arbitrarily, capriciously or irrationally. I think you
24 have proven beyond all doubt that Mr. Campbell has an
25 on-the-whole admirable record as an inmate during the
10 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 11
1 lengthy number of years that he's been incarcerated, but
2 the courts have held numerous times that doing good works
3 in prison and being a model inmate standing alone is not a
4 reason to grant -- is not necessarily a reason, standing
5 alone, to grant a sentenced petitioner to parole.
6 And in reading through all of the voluminous
7 documents that have been presented, it appears to me that
8 the parole board did acknowledge Mr. Campbell's prison
9 record and did praise Mr. Campbell's record. So they were
10 fully aware of his achievements, of which there have been
11 quite a few in the prison system, but I find that they
12 properly balanced that with the nature of the crime
13 itself.
14 They properly considered what actually happened
15 back at the time this crime was committed, which was
16 probably the most heinous crimes that any person can
17 commit against other people; certainly murder, two counts
18 of murder. And murder being the most heinous crime that
19 can be committed, perhaps, that could only be surpassed by
20 rape. And in this case, I think you have all three in the
21 most horrific manner possible.
22 And I think the parole board and this Court
23 certainly appreciates that at the time of the crime, the
24 petitioner, Mr. Campbell, was merely 14 years of age, I
25 believe. Am I correct? I believe he was 14 years of age,
11 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 12
1 but you also have to consider that the victims were
2 14 years old and three years old. And both the parole
3 board and this Court, I believe, take into great
4 consideration the youth of Mr. Campbell at the time that
5 the crime was committed of 14 years of age, plus the fact
6 that it's pretty clear on the record that he was a very
7 emotionally-disturbed and mentally-disturbed individual.
8 MS. SWARTZ: Your Honor, I apologize for
9 interrupting. He was disabled.
10 THE COURT: Disabled. Emotional disabled. The
11 point being though, however you describe it, there are
12 many young people age 14 who are disabled who do not
13 commit the horrific nature of these crimes. So the fact
14 that the petitioner was disabled is a factor to take into
15 consideration, but there also has to be some understanding
16 that there are many people with similar disabilities that
17 do not commit these crimes. So there has to be an
18 understanding and I think the parole board took this into
19 consideration because you have to balance the facts back
20 when Mr. Campbell was 14 years old and committed these
21 terrible offenses with the fact of the nature of the
22 offenses.
23 Mr. Campbell has another parole hearing in two
24 months or less and it appears clearly that the parole
25 board is taking very serious consideration of what
12 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 13
1 Mr. Campbell has accomplished in prison because it's only
2 a year from the last parole. Is it true the last parole
3 was in August of 2020?
4 MS. SWARTZ: The timeline of the hearings --
5 THE COURT: Right.
6 MS. SWARTZ: The most recent hearings was
7 August 2019, August 2020 and March 2021. Because
8 Mr. Campbell has postponed a number of times.
9 THE COURT: All right. So he's getting
10 appearances very frequently now before the parole board.
11 I think that's an acknowledgment by the parole board that
12 Mr. Campbell has been behind bars in prison for many, many
13 years, decades now and --
14 MS. SWARTZ: Your Honor, if it's okay for me to
15 just weigh in, if it's all right with you.
16 THE COURT: I'll give you some time, yes.
17 MS. SWARTZ: Those are not -- those are
18 statutorily required appearances, the de novo. So he's
19 entitled to an appearance every 24 months.
20 THE COURT: Well, all right. So he's getting
21 one now and based upon what I've seen, I can find no
22 reason to find that what the parole board did is
23 irrational.
24 MS. SWARTZ: Your Honor, despite the errors?
25 There are factual errors in their decision.
13 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 14
1 THE COURT: Well, there are factual errors, but
2 I've read with quite intensity the parole board hearings
3 and I don't find that the errors rise to the level of
4 irrationality or arbitrary or capricious conduct. That's
5 the problem here. You know, you have your objection to my
6 decision and certainly it can be reviewed by the appellate
7 courts and if they disagree with me, that's fine with me.
8 I'm not God and I'm not a king and I'm not -- I don't
9 know -- beyond making errors, but from what I see in this
10 case on the voluminous record, I think the parole board
11 acted within their authority and they didn't violate any
12 rules of -- they didn't violate anything to the extent
13 that their decision is irrational or arbitrary or
14 capricious. That's my finding.
15 MS. SWARTZ: Okay.
16 THE COURT: I wish Mr. Campbell luck at his next
17 parole hearing in August, but based upon what I saw before
18 the considerations and the discussions of the parole
19 board, I think they have a very good handle on it. And
20 this is not an easy decision for a parole board or a court
21 to make. There are a lot of factors here and Mr. Campbell
22 has certainly done a lot to rehabilitate himself, but
23 there are other factors involved here, too.
24 MS. SWARTZ: Understood, your Honor.
25 THE COURT: All right. Ms. Rubinstein, I really
14 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 15
1 didn't afford you much time since I announced very early
2 on that I was not granting the petitioner's application.
3 Is there anything you want to put on the record?
4 MS. RUBINSTEIN: Given the Court's ruling, no,
5 your Honor. I think the record is clear.
6 THE COURT: All right. Thank you all for your
7 appearances.
8 I have to tell you, Ms. Swartz, the papers that
9 your team put together to present to this Court were
10 exceptionally good.
11 MS. SWARTZ: Thank you, your Honor.
12 THE COURT: I wish I could have granted your
13 petition based upon your quality of representation, but
14 that's not what I could do.
15 MS. SWARTZ: Understood. We'll be sure to try
16 again in the future nonetheless.
17 THE COURT: All right. I appreciate the effort
18 that was made here. It was a pretty spectacular effort of
19 work put in and I see that very clearly.
20 MS. SWARTZ: Our position is that Mr. Campbell
21 is very worthy of parole, so we'll continue fighting for
22 him, but we appreciate the compliment on our work.
23 THE COURT: I understand your position, but
24 there's -- you're not seeing necessarily the other side to
25 this issue, but I appreciate it and good luck to your
15 of 16
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022
PROCEEDINGS 16
1 client in August.
2 MS. SWARTZ: Thank you, your Honor.
3 THE COURT: All right. That concludes this
4 proceeding. And thank you all of your appearances.
5 MS. RUBINSTEIN: Thank you, your Honor.
6 MS. SWARTZ: Thank you, your Honor.
7 (Whereupon, the proceedings were concluded.)
8
9 Certified to be a true and accurate transcript.
11 ________________________
MALEGXY MELENDEZ
12 Senior Court Reporter
13
14
15
16
17
18
19
20
21
22
23
24
25
16 of 16
Preview
FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN 2 ------------------------------------------------------------X In the Matter of the Application of 3 CHAD A. CAMPBELL, Petitioner, 4 For a judgment pursuant to Article 78 of the Civil 5 Practice Law and Rules, 6 -against- Index No. E2021-855 7 TINA M. STANFORD, Chairwoman of the New York State 8 Board of Parole, Defendant. 9 ------------------------------------------------------------X ORDER TO SHOW CAUSE 10 PROCEEDINGS HELD VIRTUALLY June 25, 2021 11 B E F O R E: HON. STEPHAN G. SCHICK, 12 Justice of the Supreme Court 13 A P P E A R A N C E S: 14 ORRICK HERRINGTON & SUTCLIFFE, LLP Attorneys for the Petitioner 15 51 West 52nd Street New York, New York 10019 16 BY: ROCHELLE F. SWARTZ, ESQ. and ELYSE D. ECHTMAN, ESQ. 17 and SYDNEY HARGROVE, ESQ. 18 THE LEGAL AID SOCIETY Criminal Appeals Bureau 19 Attorneys for the Petitioner 199 Water Street - 5th Floor 20 New York, New York 10038 BY: LAWRENCE T. HAUSMAN, ESQ. 21 LETITIA JAMES, ESQ. 22 New York State Attorney General for the Respondent One Civic Center Plaza 23 Poughkeepsie, New York 12601 BY: HEATHER R. RUBINSTEIN, ESQ. 24 ________________________________________________________________ MALEGXY MELENDEZ 25 Senior Court Reporter 1 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 2 1 THE COURT: This is in the matter of Chad 2 Campbell against Stanford, Tina M. Stanford. This is the 3 return date on an order to show cause. This is being held 4 virtually due to the pandemic. I know there are a lot of 5 observers, but I believe, based upon the paperwork that's 6 been filed with this Court, the respondents are 7 represented by Heather Rubinstein, Assistant Attorney 8 General. 9 MS. RUBINSTEIN: Yes. Good morning, your Honor. 10 THE COURT: Good morning. 11 I believe the petitioner is represented by 12 Rochelle Swartz. 13 MS. SWARTZ: That's correct, your Honor. And my 14 colleague, Elyse Echtman, I believe, entered an appearance 15 as well. 16 THE COURT: All right. I just want one 17 speaking -- 18 MS. SWARTZ: Sure. 19 THE COURT: -- so we have only two attorneys. 20 Otherwise, my experience is that every attorney wants to 21 get their word in, but we'd run out of time after a while. 22 MS. SWARTZ: Understood. 23 THE COURT: All right. So this is a petition 24 and I notice on the NYSCEF filing, there are a number of 25 motions returnable today. 2 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 3 1 Ms. Rubinstein, I understand that you wanted 2 additional time to file an answer and the record, but I do 3 have on my desk piles of records from the previous case 4 that was filed before me. I believe they would be all the 5 same records, would they not? 6 MS. RUBINSTEIN: They're not, your Honor. 7 THE COURT: There's additional records? 8 MS. RUBINSTEIN: I have not actually -- because 9 of the current state of affairs, I haven't actually seen 10 the complete record for the most recent interviews. So I 11 can't attest to whether or not the documents are different 12 or the same and whatever was before the board is the 13 record. And so clearly it would have been different than 14 what had been introduced prior because it's a subsequent 15 interview. 16 THE COURT: Ms. Swartz, in your letter, you 17 requested this Court go ahead today without the record. 18 Is that what you wish to do? 19 MS. SWARTZ: No, your Honor. Our understanding 20 was that the record remains the same. That this 21 hearing -- the hearing that -- or, rather, the interview 22 that we're challenging -- the seventh denial, as we're 23 calling it -- happened in August of 2020 and the records, 24 as far as we understand it and as far as we've been told, 25 are the same as they've been all along. 3 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 4 1 So we don't -- we're not aware of there being 2 extra documents, but certainly if there are, we would like 3 to see them. 4 MS. RUBINSTEIN: I don't know, your Honor. 5 Quite honestly, I haven't seen them, so I can't speak to 6 them. 7 THE COURT: Well, if this is an appeal from the 8 determination of the parole board in August of 2020, I 9 believe I have all those records. I have extensive 10 transcripts of the appearance before the parole board, I 11 believe, and the appearances by the victim's family and 12 very, very numerous amounts of transcripts, which I've 13 read through, albeit, I think, in January or February of 14 this year, but I must say, the contents were sufficiently 15 explicit. I have a very good memory of it. I might say 16 not necessarily a good thing, but I do remember it all. 17 And I believe, Ms. Swartz, you have a number of 18 motions on this new case that's here today, Index 19 Number 2021-855. What are your motions? 20 MS. SWARTZ: Your Honor, we have the petition. 21 And as far as I understand it, Ms. Rubinstein moved to 22 dismiss. We opposed that motion for dismissal. And then 23 we moved for leave from the Court to take discovery. 24 THE COURT: So you don't want a decision on the 25 petition? You want some discovery? 4 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 5 1 MS. SWARTZ: We would be eager to have a 2 decision if your Honor is prepared to make one today. In 3 the alternative, we would be eager to take discovery. We 4 were trying to present as full a record as possible to 5 your Honor in advance of, you know, taking up your time 6 for a hearing. 7 THE COURT: Well, I certainly have an extensive 8 amount of discovery information already and as far as the 9 motion to dismiss the petition, that is denied. I think 10 certainly the petitioner has presented a case. I must 11 admit that I have all of the prior discovery from the 12 prior application which was Index Number E2020-1001, I 13 believe. 14 MS. SWARTZ: That's correct, your Honor. 15 THE COURT: If you want more time to present 16 discovery, I would find it hard to deny that. However, 17 Ms. Swartz, as you've pointed out, this petitioner has 18 another scheduled appearance before the parole board in 19 August of this year, 2021. Is that not correct? 20 MS. SWARTZ: That's correct, your Honor. And 21 just -- I apologize for interrupting. 22 THE COURT: No. Go ahead. Go ahead. 23 MS. SWARTZ: Just to be clear, there are items 24 that it sounds like the Court has access to that we, 25 counsel for petitioner, do not have access to. So those 5 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 6 1 are the items that we were seeking in our motion for 2 discovery. 3 THE COURT: All the items I'm referring to were 4 from E2021-1001, I believe. I have some of them here on 5 my desk. 6 MS. SWARTZ: We do not have -- 7 THE COURT: This isn't all of them, but it's my 8 understanding all of this was provided electronically in 9 the prior case. 10 MS. SWARTZ: We have seen everything that's on 11 the prior case's docket and I know Ms. Rubinstein served 12 us with some hard copy documents that it looked like she 13 was looking to seal in support of her motion to dismiss in 14 this case. For instance, one of the items that we would 15 be seeking in discovery, if your Honor is not prepared to 16 rule on the petition today, would be the victim impact 17 statements that you referenced. We do not have access to 18 those. 19 THE COURT: Well, no. There's -- the things 20 that I'm recalling were when the victims appeared in front 21 of the parole board and those transcripts. You do not 22 have that? 23 MS. SWARTZ: We do not. As far as I know -- and 24 I invite anyone on my team who knows otherwise to correct 25 me -- but as far as I know, I have not seen those and we 6 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 7 1 do not have access to them. 2 THE COURT: Is that so, Ms. Rubinstein? 3 MS. RUBINSTEIN: That is the respondent's 4 position. And I apologize, the discovery motion was not 5 scheduled to be heard today and respondents have not put 6 in an opposition on the calendar for another -- I believe 7 it's another week at least. 8 THE COURT: Well, I'm saving them time. You do 9 have a motion to seal and I don't know why that should not 10 be granted. 11 MS. RUBINSTEIN: The respondents take no 12 position with regard to petitioner's request to seal the 13 record. 14 THE COURT: All right. So that motion is 15 granted. 16 MS. SWARTZ: Thank you, your Honor. 17 THE COURT: That's on the other index number, 18 E2020-1001. 19 Ms. Rubinstein, can you submit an order to that 20 effect to the Court? 21 MS. SWARTZ: Your Honor, for clarification 22 purposes, was that petitioner's motion to file a single 23 exhibit under seal, Exhibit 13 to our petition, or was 24 that Ms. Rubinstein's request to file the exhibits to her 25 motion to dismiss under seal? 7 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 8 1 MS. RUBINSTEIN: We took no position with regard 2 to the sealing, your Honor. We were trying to protect the 3 record based on the outstanding motion. 4 MS. SWARTZ: Oh, understood. 5 MS. RUBINSTEIN: The outstanding motion to seal, 6 we did it in protection of the record just in case the 7 Court granted the motion. 8 MS. SWARTZ: Understood. Thank you, 9 Ms. Rubinstein. 10 THE COURT: All right. Ms. Rubinstein, just -- 11 sometimes I hear you perfectly well, but sometimes it's 12 garbled and I don't know whether it's the closeness to the 13 mic or not. 14 So to get back to Ms. Swartz, you don't want a 15 decision today? And my question is: With the new parole 16 date in August of 2021 -- which is two months away. Less 17 than two months maybe. Do you have a date in August? 18 MS. SWARTZ: Our understanding is that the 19 parole board does not provide a date. They let the 20 petitioner know shortly before the hearing happens. Our 21 understanding is that it should be in early August. 22 THE COURT: All right. Well, if I adjourn this 23 argument, I mean, it might be after -- you know, it might 24 make this issue moot. Does that concern you? 25 MS. SWARTZ: That is the position that we have 8 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 9 1 taken, your Honor. We are here on this case appealing the 2 seventh denial. There's already been an eighth denial, 3 which I believe underlies Ms. Rubinstein's motion to 4 dismiss. Assuming this hearing in August goes forward, 5 there may very well be a ninth denial. At which point, 6 our understanding is that the attorney general's office 7 and respondent will take the position that the eighth 8 denial is then moot. We're definitely concerned about 9 that, but we wanted to present your Honor with options. 10 If you are prepared to rule today, we are very 11 eager to receive a ruling. If you are not prepared to 12 rule today, then we would like to pursue a discovery 13 motion and cross, I suppose, the bridge on any mootness 14 arguments concerning the eighth denial as they come up. 15 I will say, the other requests that we have 16 made, and we're prepared to file a formal motion or any 17 other documents that your Honor might need, but in light 18 of the timing of all of this and the fact that the 19 attorney general has moved to dismiss and taken the 20 position that the eighth denial is now the basis for 21 petitioner's hold, we would be eager to either amend our 22 petition or file another petition in the context of this 23 proceeding challenging the eighth denial and effectively 24 skipping the administrative appeal process, which would 25 take, our understanding is four months. So we're going -- 9 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 10 1 I know it's complex. 2 THE COURT: I would suggest that the best 3 procedure to follow is to have a ruling today because you 4 have another hearing in August. 5 MS. SWARTZ: Sure. 6 THE COURT: And rather than having two prior 7 proceedings, one, the Court making the decision and the 8 other one doing an administrative appeal, doesn't sound to 9 me that's very economical. So, I mean, my question for 10 you, Ms. Swartz, is in regard to the current petition, 11 which is E2021-855. In order to vacate a parole decision, 12 this Court has to find that the parole board acted 13 arbitrarily and capriciously and irrationally basically. 14 Based upon the facts that are so clear here in this case, 15 how can the Court find that they acted irrationally? 16 MS. SWARTZ: That's our position, your Honor, 17 that there is no basis to uphold the decision. And if 18 your Honor's prepared to rule on the petition today, we 19 welcome that. 20 THE COURT: All right. Well, I'm prepared to 21 rule and I'm prepared to rule that there's insufficient 22 evidence to establish that the division of parole acted 23 arbitrarily, capriciously or irrationally. I think you 24 have proven beyond all doubt that Mr. Campbell has an 25 on-the-whole admirable record as an inmate during the 10 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 11 1 lengthy number of years that he's been incarcerated, but 2 the courts have held numerous times that doing good works 3 in prison and being a model inmate standing alone is not a 4 reason to grant -- is not necessarily a reason, standing 5 alone, to grant a sentenced petitioner to parole. 6 And in reading through all of the voluminous 7 documents that have been presented, it appears to me that 8 the parole board did acknowledge Mr. Campbell's prison 9 record and did praise Mr. Campbell's record. So they were 10 fully aware of his achievements, of which there have been 11 quite a few in the prison system, but I find that they 12 properly balanced that with the nature of the crime 13 itself. 14 They properly considered what actually happened 15 back at the time this crime was committed, which was 16 probably the most heinous crimes that any person can 17 commit against other people; certainly murder, two counts 18 of murder. And murder being the most heinous crime that 19 can be committed, perhaps, that could only be surpassed by 20 rape. And in this case, I think you have all three in the 21 most horrific manner possible. 22 And I think the parole board and this Court 23 certainly appreciates that at the time of the crime, the 24 petitioner, Mr. Campbell, was merely 14 years of age, I 25 believe. Am I correct? I believe he was 14 years of age, 11 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 12 1 but you also have to consider that the victims were 2 14 years old and three years old. And both the parole 3 board and this Court, I believe, take into great 4 consideration the youth of Mr. Campbell at the time that 5 the crime was committed of 14 years of age, plus the fact 6 that it's pretty clear on the record that he was a very 7 emotionally-disturbed and mentally-disturbed individual. 8 MS. SWARTZ: Your Honor, I apologize for 9 interrupting. He was disabled. 10 THE COURT: Disabled. Emotional disabled. The 11 point being though, however you describe it, there are 12 many young people age 14 who are disabled who do not 13 commit the horrific nature of these crimes. So the fact 14 that the petitioner was disabled is a factor to take into 15 consideration, but there also has to be some understanding 16 that there are many people with similar disabilities that 17 do not commit these crimes. So there has to be an 18 understanding and I think the parole board took this into 19 consideration because you have to balance the facts back 20 when Mr. Campbell was 14 years old and committed these 21 terrible offenses with the fact of the nature of the 22 offenses. 23 Mr. Campbell has another parole hearing in two 24 months or less and it appears clearly that the parole 25 board is taking very serious consideration of what 12 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 13 1 Mr. Campbell has accomplished in prison because it's only 2 a year from the last parole. Is it true the last parole 3 was in August of 2020? 4 MS. SWARTZ: The timeline of the hearings -- 5 THE COURT: Right. 6 MS. SWARTZ: The most recent hearings was 7 August 2019, August 2020 and March 2021. Because 8 Mr. Campbell has postponed a number of times. 9 THE COURT: All right. So he's getting 10 appearances very frequently now before the parole board. 11 I think that's an acknowledgment by the parole board that 12 Mr. Campbell has been behind bars in prison for many, many 13 years, decades now and -- 14 MS. SWARTZ: Your Honor, if it's okay for me to 15 just weigh in, if it's all right with you. 16 THE COURT: I'll give you some time, yes. 17 MS. SWARTZ: Those are not -- those are 18 statutorily required appearances, the de novo. So he's 19 entitled to an appearance every 24 months. 20 THE COURT: Well, all right. So he's getting 21 one now and based upon what I've seen, I can find no 22 reason to find that what the parole board did is 23 irrational. 24 MS. SWARTZ: Your Honor, despite the errors? 25 There are factual errors in their decision. 13 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 14 1 THE COURT: Well, there are factual errors, but 2 I've read with quite intensity the parole board hearings 3 and I don't find that the errors rise to the level of 4 irrationality or arbitrary or capricious conduct. That's 5 the problem here. You know, you have your objection to my 6 decision and certainly it can be reviewed by the appellate 7 courts and if they disagree with me, that's fine with me. 8 I'm not God and I'm not a king and I'm not -- I don't 9 know -- beyond making errors, but from what I see in this 10 case on the voluminous record, I think the parole board 11 acted within their authority and they didn't violate any 12 rules of -- they didn't violate anything to the extent 13 that their decision is irrational or arbitrary or 14 capricious. That's my finding. 15 MS. SWARTZ: Okay. 16 THE COURT: I wish Mr. Campbell luck at his next 17 parole hearing in August, but based upon what I saw before 18 the considerations and the discussions of the parole 19 board, I think they have a very good handle on it. And 20 this is not an easy decision for a parole board or a court 21 to make. There are a lot of factors here and Mr. Campbell 22 has certainly done a lot to rehabilitate himself, but 23 there are other factors involved here, too. 24 MS. SWARTZ: Understood, your Honor. 25 THE COURT: All right. Ms. Rubinstein, I really 14 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 15 1 didn't afford you much time since I announced very early 2 on that I was not granting the petitioner's application. 3 Is there anything you want to put on the record? 4 MS. RUBINSTEIN: Given the Court's ruling, no, 5 your Honor. I think the record is clear. 6 THE COURT: All right. Thank you all for your 7 appearances. 8 I have to tell you, Ms. Swartz, the papers that 9 your team put together to present to this Court were 10 exceptionally good. 11 MS. SWARTZ: Thank you, your Honor. 12 THE COURT: I wish I could have granted your 13 petition based upon your quality of representation, but 14 that's not what I could do. 15 MS. SWARTZ: Understood. We'll be sure to try 16 again in the future nonetheless. 17 THE COURT: All right. I appreciate the effort 18 that was made here. It was a pretty spectacular effort of 19 work put in and I see that very clearly. 20 MS. SWARTZ: Our position is that Mr. Campbell 21 is very worthy of parole, so we'll continue fighting for 22 him, but we appreciate the compliment on our work. 23 THE COURT: I understand your position, but 24 there's -- you're not seeing necessarily the other side to 25 this issue, but I appreciate it and good luck to your 15 of 16 FILED: SULLIVAN COUNTY CLERK 06/07/2022 01:49 PM INDEX NO. E2021-855 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 06/07/2022 PROCEEDINGS 16 1 client in August. 2 MS. SWARTZ: Thank you, your Honor. 3 THE COURT: All right. That concludes this 4 proceeding. And thank you all of your appearances. 5 MS. RUBINSTEIN: Thank you, your Honor. 6 MS. SWARTZ: Thank you, your Honor. 7 (Whereupon, the proceedings were concluded.) 8 9 Certified to be a true and accurate transcript. 11 ________________________ MALEGXY MELENDEZ 12 Senior Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 16 of 16