Malerba v. Evans

Sep 26, 2013
Versions:109 A.D.3d 1067
971 N.Y.S.2d 593

McCarthy, J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered December 14, 2012 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 an aggregate prison sentence of 25 years to life as the result of his 1982 conviction for two counts of murder in the second degree and attempted rape in the first degree. He reappeared before the Board of Parole in November 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, and petitioner appeals.

Petitioner contends that he is entitled to a new parole hearing due to the Board’s failure to use a “Correctional Offender Management Profiling for Alternative Sanctions Risk and Needs Assessment” instrument, a document intended to bring the Board into compliance with recent amendments to Executive Law § 259-c (4). For the reasons stated in Matter of Garfield v Evans (108 AD3d 830 [2013]), we agree. Petitioner’s remaining contentions, to the extent they are properly raised in this proceeding, are academic in light of the foregoing.

Stein, J.P., 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.