Case 7:06-cv CLB Document 5 Filed 03/23/2006 Page 1 of 21

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 1 of 21 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------------X PETER GRAZIANO, JAMES BUCKLEY, MARK MALONE, ROBERT A. HARRIS, WILLIAM WALKER, AARON TALLEY, MAURICE MURRELL, STEVEN HO, BRIAN JACQUES and CHARLES FRIEDGOOD, suing on behalf of themselves and all others similarly situated, ECF CASE -against- Plaintiffs, FIRST AMENDED COMPLAINT GEORGE E. PATAKI, Governor of the State of New York, ROBERT DENNISON, Chairman of the New York State Division of Parole, and THE NEW YORK STATE DIVISION OF PAROLE, Defendants. 06 CIV 00480 (CLB) ----------------------------------------------------------------------------X Plaintiffs, PETER GRAZIANO, JAMES BUCKLEY, MARK MALONE, ROBERT A. HARRIS, WILLIAM WALKER, AARON, TALLEY, MAURICE MURRELL, STEVEN HO, BRIAN JACQUES and CHARLES FRIEDGOOD, complaining of the defendants on behalf of themselves and all others similarly situated, allege as follows: INTRODUCTION 1. Since assuming office in 1995, Governor Pataki has made it a hallmark of his criminal justice policy to abolish parole for all felony offenders. He was successful in his first year in office when the New York State Legislature passed the Sentencing Reform Act of 1995, which established determinate sentences for all repeat, violent felony

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 2 of 21 offenders. The policy was expanded in 1998 with the passage of Jenna s Law, which abolished indeterminate sentencing and replaced it with determinate sentencing for many first-time felony offenders. 2. Still being imposed and served are indeterminate sentences of prisoners convicted of violent felony offenses committed before 1998 and all non-violent felony offenses. Although, by law, the prisoners serving indeterminate sentences are eligible for parole release upon the expiration of their minimum terms, Governor Pataki s political and economic agendas have virtually eliminated parole for the prisoners who committed A-1 violent felony offenses (hereinafter referred to as violent felony offense, violent felonies or violent offenses ). The unofficial policy or practice of the Parole Board, as instigated by Pataki and executed by the Division of Parole under Parole Chairman Robert Dennison, has been to unlawfully eliminate or substantially curtail the Parole Board s discretion when making parole release determinations concerning prisoners serving sentences for A-1 violent offenses and to have the Parole Board deny parole release to such prisoners solely on the basis of the violent nature of their present offenses. The plaintiffs claim that this policy or practice is a violation of due process and equal protection and is an unconstitutional ex post facto enhancement of the indeterminate sentences imposed upon them by the sentencing courts.

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 3 of 21 3. The named plaintiffs are suing on behalf of themselves and they also seek to represent a class comprised of all prisoners in the custody of the New York State Department of Correctional Services who (1) were convicted of A-1 violent felony offenses; (2) have served the minimum terms of their indeterminate sentences and are therefore eligible for parole release; and (3) have had their most recent applications for parole release denied by the Parole Board solely because of the seriousness of the offense, the nature of the present offense, or words to that affect, and, in some cases, their prior criminal history. 4. All of the named plaintiffs, with the exception of plaintiff Friedgood, also seek to represent a sub-class of prisoners who meet the same defining factors of the main class as set forth in 3 above ( the class ), but who also were sentenced to less than the statutory maximum term of imprisonment 25 years to life for their violent offenses. 5. The class period for both the class and the sub-class commences three years from the date in which this action was filed with the Clerk of the United States District Court for the Southern District of New York and extends until such date when the defendants are enjoined from, or otherwise cease, the unconstitutional manner in which the Parole Board is denying parole release to the plaintiffs and members of the proposed class and/or sub-class.

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 4 of 21 JURISDICTION AND VENUE 6. This is a civil action authorized by 42 U.S.C. 1983 for declaratory and injunctive relief to redress the deprivation, under color of state law, of rights, privileges and immunities secured to plaintiffs by Article 1, 10, cl. 1 and the Fourteenth Amendment of the United States Constitution. Jurisdiction is conferred by 28 U.S.C. 1331 and 1343. 7. This action is properly filed in the United States District Court for the Southern District of New York, as authorized by 28 U.S.C. 1391, inasmuch as jurisdiction of this action is not founded on diversity of citizenship and some of the named plaintiffs are incarcerated in the Southern District of New York. THE PARTIES The Plaintiffs 8. Plaintiff, James Buckley is a prisoner in the custody of the New York State Department of Correctional Services at the Mid-Orange Correctional Facility. Buckley s inmate number is 76-A-4477. Buckley is serving a sentence of 15 years to life pursuant to his 1976 conviction of the crime of murder in the second degree, N.Y.S. Penal Law 125.25, a class A-I violent felony. On October 13, 2004, Buckley was denied parole release for the eighth time. This adverse determination of the Board of Parole reads as follows:

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 5 of 21 Parole is denied, hold eighteen months, next appearance 4/06. Parole is denied given your criminal actions in the instant offense of murder second, which involved you, armed in the commission of a robbery, fatally shooting the store owner in the back and shot and injured an off-duty police officer who was in pursuit of you. This conviction represents a serious escalation in your criminal conduct, which dates back to 1969 and includes drugrelated offense, possession of burglary tools and stolen property. Your programming and disciplinary was reviewed and considered, but more compelling was your total disregard for human life. A favorable decision cannot be rendered at this time. The guidelines are unspecified. 9. Plaintiff, Aaron Talley is a prisoner in the custody of the New York State Department of Correctional Services at the Mid-Orange Correctional Facility. Talley s inmate number is 73-A-1113. Talley is serving a sentence of 15 years to life pursuant to his 1973 conviction of the crime of murder in the second degree. On February 15, 2005, Talley was denied parole release for the tenth time. This adverse determination of the Board of Parole reads as follows: Parole is denied, hold 24 months, next appearance 2/07. After a review the record and this interview, parole is denied. The instant offense, murder, which is an A-1 felony, occurred when you did conspire and commit an in concert felony murder of four individuals. You also attempted to murder two other people associated with this case. These two people were shot and incurred serious physical injuries. Your institutional achievements and satisfactory disciplinary performance is noted. Your participation in the virtual execution of these victims leads this panel to determine that your propensity for extreme violence and indifference for the law renders you a risk to the welfare and safety of the community and a poor candidate for discretionary release. His guidelines are unspecified. 10. Plaintiff, Peter Graziano is a prisoner in the custody of the New York State Department of Correctional Services at the Marcy Correctional Facility. Graziano s

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 6 of 21 inmate number is 86-A-4738. Graziano is serving a sentence of 15 years to life pursuant to his 1986 conviction of the crime of murder in the second degree, N.Y.S. Penal Law 125.25, a class A-1 violent felony. On February 1, 2005, Graziano was denied parole release for the third time. This adverse determination of the Board of Parole reads as follows: Parole is again denied. After a personal interview and due deliberation, review of the record, the panel finds that discretionary release at this time is incompatible with public safety and would deprecate the serious nature of your offense, undermine respect for the law. You were convicted of murder nd 2, stemming from an argument in a bar. You and the victim were drinking. At a point you drive home, some 2 to 3 miles away, took a shower, secured a.380 auto, returned to the area and on the street, shot the victim in the side of the head. You see this act as due to stress, alcohol, drug use, emotional problems, self-medication, but have yet to recognize that a life was taken needlessly. Your accomplishments in prison are noted. Keep a clean record. 11. Plaintiff, Mark Malone is a prisoner in the custody of the New York State Department of Correctional Services at the Marcy Correctional Facility. Malone s inmate number is 84-B-0878. Malone is serving a sentence of 20 years to life pursuant to his 1984 conviction of the crime of murder in the second degree, N.Y.S. Penal Law 125.25, a class A-1 violent felony, as well as a sentence of 5 to 15 years for burglary in the second degree, N.Y.S. Penal Law 140.25. On June 28, 2005, Malone was denied parole release for the second time. This adverse determination of the Board of Parole reads as follows: Parole is denied. On one occasion you illegally entered an apartment and displayed a pocket knife. Approximately two weeks later, you again

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 7 of 21 entered an apartment and awoke a husband and wife who were sleeping in their bed. You proceeded to shoot and kill the male victim. A prior conviction for criminal possession of stolen property and a youthful offender adjudication for criminal trespass are noted. There is an obvious escalation of your criminality. Your actions are reckless, out of control and without regard for others. Discretionary release is inappropriate as it would deprecate the severity of your murder conviction and serve to undermine respect for the law. This panel feels that your actions are aggravated by the extreme vulnerability of the victims. 12. Plaintiff, Robert A. Harris is a prisoner in the custody of the New York State Department of Correctional Services at the Marcy Correctional Facility. Harris inmate number is 79-C-0370. Harris is serving a sentence of 15 years to life pursuant to his 1979 conviction of the crime of murder in the second degree, N.Y.S. Penal Law 125.25, a class A-1 violent felony. On July 29, 2003, Harris was denied parole release for the sixth time. This adverse determination of the Board of Parole reads as follows: Parole is once again denied. We have given careful consideration to your personal interview and your file, and accordingly we conclude that your discretionary release to supervision would not be appropriate at this time. This crime involved you taking the life of an innocent person during the course of and commission of an armed robbery. By your account, you did not intend to kill the victim. However, you did intend to carry through with your plan to rob the store and possess the gun which ultimately lead to the death. This crime represents an extreme escalation of your criminal conduct. You were also cited for a Tier III ticket since your last board appearance. Having considered all factors required by law, we conclude that community standards would be best served by your continued incarceration at this time. 13. Plaintiff, William Walker is a prisoner in the custody of the New York State Department of Correctional Services at the Marcy Correctional Facility. Walker s inmate

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 8 of 21 number is 88-T-1224. Walker is serving a sentence of 15 years to life pursuant to his 1988 conviction of the crime of murder in the second degree, N.Y.S. Penal Law 125.25, a class A-1 violent felony. On August 3, 2004, Walker was denied parole release for the second time. This adverse determination of the Board of Parole reads as follows: After a careful review of the records and this interview, parole is again denied for the following reasons: You continue to serve time for your involvement in fatally stabbing the victim. You then, in-concert, tried to dispose of the body by putting him in a barrel and covering him with lime and water. This crime is a violent escalation of a criminal history that spans two states, involves two separate convictions, and a state prison term. Despite positive programming and discipline, your ongoing criminal conduct and display of extreme violence in conjunction with the fact that you fled the jurisdiction after the crime, militates against discretionary release. 14. Plaintiff, Maurice Murrell is a prisoner in the custody of the New York State Department of Correctional Services at the Cayuga Correctional Facility. Murrell s inmate number is 84-B-2410. Murrell is serving a sentence of 20 years to life pursuant to his 1984 conviction of the crime of murder in the second degree, N.Y.S. Penal Law 125.25, a class A-1 violent felony, as well as a sentence of 2 to 6 years for robbery in the first degree, N.Y.S. Penal Law 160.15. On September 20, 2005, Murrell was denied parole release for the second time. This adverse determination of the Board of Parole reads as follows: After review of the record and interview, parole is denied. You continue to nd st serve 20 years to life for murder 2 and a 2 to 6 year term for robbery 1.

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 9 of 21 These crimes involve you in concert fatally shooting one victim and seriously injuring another. These offenses demonstrate a propensity for extreme violence and a disrespect for human life. While we not your positive programming since your last board appearance, all factors are considered, it is the determination of this panel that your release at this time would deprecate the seriousness of your violent acts and undermine respect for the law. 15. Plaintiff, Steven Ho is a prisoner in the custody of the New York State Department of Correctional Services at the Marcy Correctional Facility. Ho s inmate number is 84-A-6110. Ho is serving a sentence of 20 years to life pursuant to his 1984 conviction of the crime of murder in the second degree, N.Y.S. Penal Law 125.25, a class A-1 violent felony. On August 30, 2005, Ho was denied parole release for the second time. This adverse determination of the Board of Parole reads as follows: Parole is again denied due to the seriousness of your crime murder 2 nd degree. You brutally stabbed your victim in a revenge killing. You admit to gang membership. You have participated in many institutional programs. The panel also notes your support in the community. However, to hold otherwise would deprecate this seriousness of this senseless crime as to undermine respect for the law. 16. Plaintiff, Brian Jacques is a prisoner in the custody of the New York State Department of Correctional Services at the Southport Correctional Facility. Jacques inmate number is 83-B-2801. Jacques is serving a sentence of 15 years to life pursuant to his 1983 conviction of the crime of murder in the second degree. On August 4, 2004, Jacques was denied parole release for the fourth time. This adverse determination of the Board of Parole reads as follows:

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 10 of 21 After a review of the record and this interview, parole is again denied. The instant offense, Murder 2d (A1), occurred when you and another fatally assaulted a male victim by kicking, hitting and stomping him. The victim was dragged into a wooded area in an attempt to conceal his body and his wallet was stolen. Your history included prior burglary-related offenses, possession of stolen property, probation and jail time. Your institutional performance is noted. Your propensity for violence and inability to benefit from previous criminal justice intervention lends this panel to determine that discretionary release at this time is inappropriate. 17. Plaintiff, Charles Friedgood is a prisoner in the custody of the New York State Department of Correctional Services at the Woodbourne Correctional Facility. Friedgood s inmate number is 77-A-0455. He is serving a sentence of 25 years to life pursuant to a conviction for murder in the second degree. On December 7, 2005, at the age of 87, Friedgood was denied parole release for the third time. This adverse determination of the Board of Parole reads as follows: Parole is again denied due to the serious nature and circumstances of the IO s, Murder 2nd and GL 2, wherein you caused your wife s death by injecting her with an overdose of Demerol and stole property from her state [sic]. Having been asked once again about the reasons of your fatal actions, we found it remarkable that after nearly 30 years you remained evasive and unclear at best about the motivational factors related to your crimes. We found your responses to be disingenuous and self-serving. As discussed, we note your excellent programming, good disciplinary record, countless letters of support and good deeds, even in prison. However, we find more compelling your total disregard for the life of another, your wife, infirmed [sic] and particularly vulnerable. To release you at this time would so deprecate the seriousness of this crime as to undermine respect for law.

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 11 of 21 The Defendants 18. The Defendant George E. Pataki is the duly elected Governor of the State of New York and is the chief policymaker of all of the agencies within the State s Executive Department, including the New York State Division of Parole. Pataki is being sued in his official capacity only. 19. The New York State Division of Parole is an agency within the Executive Department of the State of New York and includes a 19-member Board of Parole which has the responsibility for determining whether parole-eligible prisoners in the custody of the New York State Department of Correctional Services will be released on parole supervision. 20. The Defendant Robert Dennison was designated by the Governor to serve as Chairman and Chief Executive Officer of the New York State Division of Parole, having been originally confirmed on June 14, 2000. Dennison is being sued in his official capacity only. CLASS ACTION ALLEGATIONS The Main Class 21. The members of the class are estimated to be in the thousands and are therefore so numerous as to render joinder impracticable. In Fiscal Year 2000-01, there were 258 initial parole interviews of prisoners serving sentences for class A-1 violent

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 12 of 21 offenses and only 3% of these prisoners were granted release; in FY 2001-02, there were 235 initial parole interviews of prisoners serving sentences for class A-1 violent offenses and only 4% of these prisoners were granted release; in FY 2002-03, there were 242 initial parole interviews of prisoners serving sentences for class A-1 violent offenses and only 4% of these prisoners were granted release. Upon information and belief, a substantial percentage of the determinations denying parole release to these prisoners were based solely upon the violent nature of their present offenses without any meaningful consideration or balancing of any other relevant or statutorily mandated factors. 22. Joinder is impracticable because all of the members of the proposed main class are incarcerated and, upon information and belief, many of them are indigent and non-english speaking and will most likely have great difficulty pursuing their constitutional claims individually. 23. Questions of law and fact common to the proposed main class include whether the defendants alleged unofficial policy of denying parole to prisoners serving indeterminate sentences for convictions of A-1 violent felony offenses without due regard to any factor other than the violent nature of their present offenses violates the class members rights to due process of law and equal protection of the law under the Fourteenth Amendment to the United States Constitution, and whether such

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 13 of 21 policy/practice violates their rights to be free from an ex post facto enhancement of their punishments under U.S. Const. Article 1, 10, cl. 1. 24. The named plaintiffs are adequate representatives of the proposed class. The constitutional violations alleged by the named plaintiffs stem from the same course of conduct by the defendants namely the defendants policy/practice of denying parole release to prisoners serving indeterminate sentences for A-1 violent felony offenses solely because of the violent nature of such offenses. The legal theories under which the named plaintiffs seek relief are the same as that upon which the class will rely. In addition, the harm suffered by the named plaintiffs is typical of the harm suffered by the proposed class members; to wit, the denial of a full, fair and balanced parole hearing conducted pursuant to the provisions of N.Y.S. Executive Law 259-I. 25. The named plaintiffs have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of their fellow class members. 26. The named plaintiffs are represented by Robert N. Isseks, Peter A. Sell, and Alex Smith. These attorneys have the resources, experience and expertise to diligently prosecute this class action and they do not have any knowledge of any conflicts among the members of the class or between any of the class members and counsel. 27. The class action is superior to other available methods for the fair and efficient adjudication of this controversy because (i) the prosecution of hundreds of separate

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 14 of 21 actions would be inefficient and wasteful of judicial resources, (ii) the members of the class are located throughout the State prison system and are not likely to be able to vindicate and enforce their constitutional and statutory rights unless this action is maintained as a class action, (iii) the issues raised can be more fairly and efficiently resolved in the context of a single action rather than piece-meal litigation in the context of separate actions, (iv) the resolution of litigation in a single forum will avoid the danger and resultant confusion of possible inconsistent determinations, (v) the prosecution of separate actions would create the risk of inconsistent and varying adjudications with respect to individuals pursuing claims against defendants which would establish incompatible standards of conduct for defendants, (vi) defendants have acted and will act on grounds applicable to all class members making final declaratory and injunctive relief on behalf of all members necessary and appropriate, and (vii) questions of law and/or fact common to members of the class predominate over any questions that will effect individual class members. The Sub-Class 28. Upon information and belief, a large percentage of the class members were sentenced to less than the statutory maximum terms of imprisonment allowed by law. Consequently, the Parole Board has been acting and continues to act as a second sentencing court by determining that the nature of the present offense of each sub-class

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 15 of 21 member requires incarceration for a longer period of time than the minimum term imposed by the sentencing court, regardless of the prisoner s institutional record. 29. The named plaintiffs Peter Graziano, James Buckley, Mark Malone, Robert A. Harris, William Walker, Aaron Talley, Maurice Murrell, Steven Ho and Brian Jacques, are adequate representatives of the proposed sub-class. The constitutional violations alleged by each of these named plaintiffs stems from the same course of conduct affecting the sub-class namely the defendants unofficial policy of denying parole release to prisoners serving indeterminate sentences for A-1 violent offenses solely because of the violent nature of such offenses. The legal theories under which the named plaintiffs seek relief are the same as that upon which the sub-class will rely. In addition, the harm suffered by the named plaintiffs are typical of the harm suffered by the proposed subclass members; to wit, the denial of a full, fair and balanced parole hearing conducted pursuant to the provisions of N.Y.S. Executive Law 259-i. 30. The additional question of law and fact common to the proposed sub-class, but not common to the main class, is whether the adverse parole determinations made pursuant to the defendants unofficial policy unlawfully usurp and supercede the sentences fixed by the courts and effectively constitute unauthorized second determinations as to the amount of punishment to be imposed upon each sub-class member by virtue of his or her present offense and criminal history.

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 16 of 21 STATEMENT OF THE CLAIMS The Class 31. Since 1995 the Board of Parole has been issuing parole determinations pursuant to an unofficial policy of denying parole release to prisoners convicted of A-1 violent felony offenses solely on the basis of the violent nature of such offenses and thus without proper consideration to any other relevant or statutorily mandated factor. 32. This unofficial policy of the Parole Board was instigated by Pataki and has been implemented and executed by the Division of Parole under Parole Chairman Robert Dennison, 33. Said unofficial policy violates the express mandates of N.Y.S. Executive Law 259-i, which provides that parole release decisions must be based upon the following factors: 1. the seriousness of the offense with due consideration to the type of sentence, length of sentence, and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentence probation report as well as consideration of any mitigating and aggravating circumstances, and activities following arrest and prior to confinement; 2. prior criminal record, including the nature and pattern of offenses, adjustment to any previous probation or parole supervision and institutional confinement; 3. the inmate s institutional record, including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates;

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 17 of 21 4. performance, if any, as a participant in a temporary release program; 5. release plans including community resources, employment, education and training and support services available to the inmate; 6. any deportation order issued against the inmate; 7. any statement made to the Board by the victim of the crime. 34. The defendants unofficial policy precludes and/or substantially curtails the Parole Board s full and meaningful consideration of the above statutorily mandated factors. Instead of fulfilling its statutorily mandated discretionary function, the Parole Board, by its execution of the defendants unofficial policy, bases its parole decisions for prisoners serving sentences for A-1 violent felonies upon impermissible political and economic factors. 35. As a result of the defendants unofficial policy there has been a sharp decline since 1995 in parole releases for prisoners serving sentences for A-1 violent offenses, as reflected in the attached summaries of the Parole Board Interviews and Release Rates for FY 1991-92 through 2002-03, the Board Decisions By Summary Crime Categories for FY 1992-93 through 2002-03, and the Parole Board Decision[s] by Crime of Commitment for FY 1991-92 through 2002-03 (Exhibit A). 36. The defendants unofficial policy, as executed by the Parole Board, is in conflict with, and completely ignores, the rehabilitative goals embodied in the provisions

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 18 of 21 of the N.Y.S Executive Law and Penal Law and contravenes the discretionary scheme mandated by these statutes. 37. The Parole Board s policy also has led to the unequal treatment of prisoners convicted of A-1 violent felony offenses as compared to prisoners who are not serving sentences for such offenses, in that a single criterion the nature of the present offense is all that is being given weight or consideration in the Board s determinations as to whether prisoners convicted of A-1 violent felony offenses will be granted parole release, while due consideration is being given to the other statutory criteria in determining whether other prisoners not so convicted will be granted parole release. 38. As a result of the Parole Board s policy, the denials of parole release to the class members have been and continue to be arbitrary and capricious, based upon impermissible political and economic reasons and constitute flagrant and unauthorized action in violation of the class members rights to due process guaranteed by the Fourteenth Amendment. 39. The Parole Board s policy has brought about an ex post facto enhancement of the punishments imposed upon the named plaintiffs and members of the prospective class at their respective sentencings and thereby violates U.S. Const. Article 1, 10, cl. 1.

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 19 of 21 The Sub-Class 40. By virtue of the fact that each named plaintiff (with the exception of plaintiff Friedgood) and member of the proposed sub-class received a sentence less than the 25-tolife maximum, the Parole Board s denial of release to each of these prisoners, based solely upon the nature of his/her present offense, effectively nullifies each sentencing court s implied determination that the nature of the sub-class member s present offense does not, in itself, preclude release once his/her minimum term has been served. 41. Through the execution of the unofficial policy, the Parole Board has been substituting the defendants politically and economically based pre-determination as to the amount of prison time each sub-class member must serve for the discretionary determination made by each sub-class member s sentencing court and is thereby effectively imposing upon each of the sub-class members a greater minimum term than the minimum term actually imposed. WHEREFORE, Plaintiffs ask this Court to: A. Issue an order adjudging and declaring that the unofficial policy/practice of the Parole Board to deny parole release to nearly all prisoners serving sentences for A-1 violent felony offenses solely on the basis of the violent nature of these prisoners present offenses violates the plaintiffs and proposed class and sub-class members rights

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 20 of 21 to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution; B. Issue an order adjudging and declaring that the unofficial policy/practice of the Parole Board to deny parole release to nearly all prisoners serving sentences for A-1 violent felony offenses solely on the basis of the violent nature of these prisoners present offenses violates the plaintiffs and proposed class and sub-class members rights to the equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution; C. Issue an order adjudging and declaring that the unofficial policy/practice of the Parole Board to deny parole release to nearly all prisoners serving sentences for A-1 violent felony offenses solely on the basis of the violent nature of these prisoners present offenses violates Article 1, 10, cl. 1 of the United States Constitution; D. Issue a permanent injunction perpetually enjoining and restraining the defendants and all those in active concert or participation with them from issuing parole release determinations of prisoners serving sentences for A-1 violent felony offenses solely on the basis of the violent nature of these prisoner s present offenses and without due consideration to all of the other factors set for in N.Y.S. Executive Law 259-i; E. Issue an order directing the plaintiffs and proposed class members immediate reappearances before the Board of Parole for parole release determinations

Case 7:06-cv-00480-CLB Document 5 Filed 03/23/2006 Page 21 of 21 made in accordance with the mandates of, and solely for the purposes underlying, N.Y.S. Executive Law 259-i; just and proper. Dated: March 22, 2006 F. Award plaintiffs the costs and disbursements of this action; G. Award plaintiffs reasonable attorney fees; and H. Grant plaintiffs such further and other relief as to this Court may seem Respectfully submitted, /s/ Robert N. Isseks ROBERT N. ISSEKS (RI 0241) ALEX SMITH (AS 5052) 6 North Street Middletown, New York 10940 (845) 344-4322 PETER A. SELL (PS 0595) 324 West 96th Street Suite 4B New York, New York 10025 (212) 280-6848 Attorneys for Plaintiffs