A state prison inmate who has been waiting more than a year for the Appellate Division, First Department, to decide whether the parole board rightly rescinded her release has been granted parole again in a decision that may make her Article 78 petition irrelevant.
The board set a tentative release date of April 29 for Aurelina Leonor, who has served nearly 22 years of an 18-year-to-life sentence for her role in the 1993 abduction of Queens “Tuxedo King” Harvey Weinstein, then chief executive officer of Lord West Formal Wear. Unless the parole board rescinds its decision again, as it did after granting her release in 2011, a case pending with the First Department since April 2013 is apparently moot.
But the same question in the pending First Department case—what constitutes the “substantial new evidence” necessary to rescind parole—is currently before the Court of Appeals in Costello v. Board of Parole, 140, which will be argued in Albany on June 5.
Weinstein, who was 68 when he was kidnapped and has since died of unrelated causes, was held captive in an underground pit for 12 days while his kidnappers demanded a ransom from the family.
Leonor, who turned down a plea bargain that would have resulted in an 8 1/3-to-25-year sentence, has insisted she had nothing to do with the actual abduction and made ransom calls only after the kidnappers threatened to kill her and her family. Regardless, a jury convicted Leonor of first-degree kidnapping.
In 2011, the parole board voted to release Leonor. However, after the decision was criticized by the New York Post, Weinstein’s son, nephew and long-time girlfriend wrote to the board opposing Leonor’s release. The board rescinded Leonor’s parole, citing new evidence and claiming that she misled the panel about her role in the crime.
Richard Greenberg, attorney-in-charge of the Office of the Appellate Defender, filed an Article 78 challenge to the rescission in Supreme Court, and the matter was transferred to the First Department. The court held oral arguments more than a year ago (NYLJ, April 1, 2013), but has yet to issue a decision, possibly because it is awaiting direction from the Court of Appeals in Costello.
In the meantime, Leonor, 65, was approved for release after an April 1 interview before parole Chairwoman Tina Stanford and commissioners Christina Hernandez and Ellen Alexander (See Transcript).
At the interview, Leonor, a native of the Dominican Republic, maintained that she was not part of the kidnapping itself and became involved in the ransom effort only. Records show that the parole board’s risk assessment indicated that she is a low risk to commit another crime, get arrested or abscond.
Parole’s latest release decision resulted in another New York Post article on April 15, reporting that Weinstein’s survivors were blindsided and were not given an opportunity to express their opposition to the board.
Greenberg declined to comment on the parole board’s decision or speculate about whether it would affect the pending First Department case. Brian Sutherland, an assistant state solicitor general, represented the parole board at the First Department.
Meanwhile, the Court of Appeals has an opportunity in Costello to decide whether after-the-fact victim impact statements constitute new evidence needed to rescind parole.
The case centers on a defendant, Pablo Costello, who was the unarmed lookout man for a 1978 robbery at a Brooklyn auto parts store. A police officer, David Guttenberg, happened upon the perpetrator’s illegally parked car and approached the store while the robbery was underway.
Costello fled when he saw the officer approaching, but his accomplice shot and killed Guttenberg. He became eligible for parole from his 25-year-to-life term in 2003, but was denied three times before a panel in 2009 voted 2-to-1 for release.
The release decision prompted a torrent of criticism from the New York Daily News and the New York City Patrolmen’s Benevolent Association, prompting the deceased officer’s relatives to submit victim impact statements opposing parole.
Costello’s parole was rescinded based on new evidence—the impact that his crime continues to have on the survivors. The Appellate Division, Third Department, upheld the rescission in a 4-1 decision awaiting review by the Court of Appeals.
Seven former parole commissioners, including two former chairmen, have signed on to an amicus brief urging the high court to reverse the Third Department. They are: former chairmen Robert Dennison and Edward Hammock and former commissioners Thomas Grant, George King, Theodore Kirkland, Vernon Manley and Barbara Treen.
“We are deeply concerned that the Third Department’s rule in this case will undermine the integrity of the parole-granting process by subjecting Board members to inappropriate media and political pressure that will damage their ability to make just and reasoned decisions,” the amici said in their brief.
Alfred O’Connor of the New York State Defenders Association and Norman Effman, executive director of the Wyoming County-Attica Legal Aid Bureau, are representing Costello on the appeal. The parole board is represented by Solicitor General Barbara Underwood, Deputy Solicitor General Andrea Oser and Senior Assistant Solicitor General Nancy Spiegel.