Matter of Thomas v Evans

Matter of Thomas v Evans 2013 NY Slip Op 06055 Decided on September 26, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 26, 2013
516151

[*1]In the Matter of JAMES THOMAS, Appellant,

v

ANDREA W. EVANS, as Chair of the Division of Parole, Respondent.

Calendar Date: September 6, 2013
Before: Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ.


James Thomas, Beacon, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Julie
M. Sheridan of counsel), for respondent.

MEMORANDUM AND ORDER


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 "COMPAS 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.P., 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.