People ex rel. Porter v. Smith

71 A.D.2d 1056, 420 N.Y.S.2d 817, 1979 N.Y. App. Div. LEXIS 13441

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1979
• Status: Published

Opinion

—Judgment unanimously reversed, and matter remitted to the Parole Board for further proceedings in accordance with the following memorandum: On March 9, 1978, three months after his release on parole, relator voluntarily admitted himself to the Rochester Psychiatric Center for treatment. As a result of incidents where he struck male nurses, attacking one in an attempt to secure keys with which to escape, a parole violation warrant was filed charging that relator had violated that condition of his parole wherein he promised not to be a menace to the safety or well-being of himself, others, or to society (7 NYCRR, 1915.10 [7] [d], repealed Jan. 9, 1979). At a final parole revocation hearing held July 7, 1978 relator admitted the incidents upon which the charges were based but contended that, inasmuch as they were the result of his mental condition, his parole should not be revoked. The Parole Board revoked relator’s parole and ordered him incarcerated for a two-year period. A determination of a parole violator’s mental competency is not a condition precedent to the commencement of revocation proceedings; rather, it is a factor which must be considered by the board in deciding whether parole should be revoked (see People ex rel. Newcomb v Metz, 64 AD2d 219, 223). A review of the record indicates that the relator’s mental competency was not considered by the Parole Board and we remit the matter to it for a hearing at which psychiatric proof should be presented. (Appeal from judgment of Wyoming Supreme Court— habeas corpus.) Present—Cardamone, J. P., Simons, Hancock, Jr., Callahan and Moule, JJ.