Matter of Warmuth v New York State Div. of Parole

Matter of Warmuth v New York State Div. of Parole 2013 NY Slip Op 06607 Decided on October 10, 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: October 10, 2013
517188

[*1]In the Matter of DOUGLAS WARMUTH, Appellant,

v

NEW YORK STATE DIVISION OF PAROLE, Respondent.

Calendar Date: September 18, 2013
Before: Peters, P.J., Stein, Spain and Egan Jr., JJ.


Simpson, Thatcher & Bartlett, New York City
(Michael J. Garvey of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany
(Frank Brady of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (O'Connor, J.), entered April 18, 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 is presently serving a prison sentence of 20 years to life as the result of his conviction for murder in the second degree. He reappeared before the Board of Parole in October 2011, 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, 830-831 [2013]). We accordingly reverse and remit to the Board for further proceedings.

Peters, P.J., Stein, Spain and Egan Jr., 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.