Thomas v. Evans

109 A.D.3d 1069, 971 N.Y.S.2d 487

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 26, 2013
• Status: Published

Opinion

Egan Jr., J.

Appeal from a judgment of the Supreme Court (Devine, J.), entered January 31, 2013 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.

Petitioner presently is serving an aggregate prison sentence of 15 years to life as the result of his conviction for murder in the second degree and manslaughter in the first degree. Petitioner reappeared before the Board of Parole in January 2012, at which time the Board denied his request for parole release and ordered him held for an additional 24 months. After he failed to receive a timely response to his administrative appeal, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition, prompting this appeal.

Respondent concedes, and we agree, that petitioner is entitled to a new parole hearing due to the Board’s failure to use an available “Correctional Offender Management Profiling for Alternative Sanctions Risk and Needs Assessment” instrument (see Matter of Garfield v Evans, 108 AD3d 830 [2013]). We accordingly reverse and remit this matter to the Board for further proceedings.

Lahtinen, J.E, Stein and McCarthy, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, determination annulled and matter remitted to the Board of Parole for further proceedings not inconsistent with this Court’s decision.