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An inmate doing time subsequent to an “Alford plea” — a rare situation where a defendant is allowed to plead guilty while disclaiming guilt — can be denied parole on the grounds that he refuses to accept responsibility and lacks remorse for a crime he consistently claims that he did not commit, the Court of Appeals held Tuesday. Tuesday’s ruling in Matter of Silmon v. Travis,139, upholds the New York Appellate Division, 2nd Department, and affirms the discretionary authority of the parole board. It is consistent with decisions in other states, including New Hampshire, Wisconsin and Ohio. The case involves a Brooklyn man, Herman Silmon, who was accused of beating his wife to death with a barbell. Silmon rejected a 2- to 6-year plea bargain that would have required him to admit guilt, and instead agreed to an Alford plea in which he accepted a 5- to 15-year sentence and maintained his innocence. Because he would not accept responsibility to express remorse, Silmon was denied parole. Matter of Silmon stems from the August 1992 slaying of Silmon’s wife. Although Silmon has insisted all along that he was at work at the time of the murder and that his wife was apparently killed by a burglar, he acknowledged the weight of the circumstantial evidence and, after rejecting one plea offer, agreed to enter an Alford plea to first-degree manslaughter. During his time in prison, Silmon had a clean disciplinary record, participated in educational and vocational programs, earned an accounting degree, tutored other prisoners, and collaborated on articles with a college professor. He also underwent domestic violence counseling and drug therapy. Further, at the time of the plea, Silmon surrendered his assets to his mother-in-law to settle a wrongful death suit. Five years into his sentence, Silmon became eligible for parole. The Parole Board denied discretionary release on the grounds that Silmon was convicted of a crime of extreme violence and failed to accept responsibility, express remorse, or evince insight into his offense. That determination was overturned by New York’s supreme court, which ordered a new hearing. But the 2nd Department reversed the trial court and upheld the Parole Board in a 4-1 decision affirmed Tuesday. BOARD’S DISCRETION Writing for the Court, Chief Judge Judith S. Kaye explored the history and nature of the Alford plea, commenting in a footnote that it “stands at the outer reaches of our settled doctrine.” Authorized under the U.S. Supreme Court’s 1970 decision in North Carolina v. Alford, 400 U.S. 25, a defendant can enter a guilty plea without admitting culpability. Alford pleas are rarely used and have been employed in unusual circumstances, such as when a defendant suffering from amnesia could not honestly confess his guilt but could acknowledge the existence of overwhelming evidence of culpability. An Alford plea results in a conviction that is no different from any other, Chief Judge Kaye said. The court rejected Silmon’s contention that the state’s acceptance of an Alford plea implied a promise that he would never have to acknowledge responsibility for the crime. “The court’s acceptance of his plea without an admission of culpability was not an indication that the state viewed him as innocent,” Kaye wrote. “The state considered petitioner guilty of the crime.” Kaye said the Parole Board has wide discretion and can deny parole when it finds release incompatible with the public welfare. She said in the 6-0 opinion that factors of remorse and insight were relevant to the board’s determination because the matter involved a convict who “was a productive citizen and model prisoner who enthusiastically engaged in educational and vocational programs, taught other prisoners and wrote about prison life, and who, nevertheless, in the eyes of the law, brutally killed his wife.” The appeal was argued by Bennet Goodman of Bronxville for Silmon and Assistant Solicitor General Melanie L. Oxhorn for the Parole Board.

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