| Matter of Garfield v Evans |
| 2013 NY Slip Op 05029 [108 AD3d 830] |
| July 3, 2013 |
| Appellate Division, Third Department |
| In the Matter of Andre Garfield, Appellant, v AndreaEvans, as Chair of the Division of Parole, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (LaBuda, J.), entered December 6,2012 in Sullivan County, which dismissed petitioner's application, in a proceedingpursuant to CPLR article 78, to review a determination of the Board of Parole denyingpetitioner's request for parole release.
In 1998, petitioner was sentenced to concurrent terms of 12½ to 25 years inprison following his conviction of two counts of robbery in the first degree. Petitionerappeared before the Board of Parole for the second time in October 2011, at which timethe Board declined to release him to parole supervision and ordered him held for anadditional 24 months. Upon administrative review, the determination was affirmed.Petitioner thereafter commenced this CPLR article 78 proceeding and Supreme Courtdismissed the petition. This appeal ensued.
On appeal, petitioner raises several challenges to the Board's determination denyinghis request for discretionary parole release, including a contention that the Boardimproperly failed to utilize a "COMPAS Risk and Needs Assessment" instrument inconnection with the relevant amendments to Executive Law § 259-c (4), whichbecame effective October 1, 2011 (see L 2011, ch 62, § 1, part C, §1, subpart A, § 49 [f]). Significantly, Executive Law § 259-c (4) requiresthat the Board "establish written procedures for its use in making parole decisions asrequired by law," and the Board acknowledges that the statute [*2]requires it to incorporate risk and needs principles into itsdecision-making process. According to the record, the Board was trained in the use of theCOMPAS instrument prior to petitioner's hearing. Moreover, the Board acknowledgesthat it has used the COMPAS instrument since February 2012 and will use it forpetitioner's next appearance. Under these circumstances, we find no justification for theBoard's failure to use the COMPAS instrument at petitioner's October 2011 hearing.Accordingly, we agree with petitioner that he is entitled to a new hearing. Given thisresult, it is unnecessary to address petitioner's remaining contentions.
Rose, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, determination annulled and matter remitted to theBoard of Parole for further proceedings not inconsistent with this Court's decision.