Melendez v. Evans

Nov 7, 2013
Versions:111 A.D.3d 996
974 N.Y.S.2d 294

Spain, J. Appeal from a judgment of the Supreme Court (LaBuda, J.), entered October 3, 2012 in Sullivan 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.

In 1991, petitioner was sentenced to an aggregate prison term of 25 years to life following his conviction of murder in the second degree and criminal possession of a weapon in the second degree. Petitioner appeared before the Board of Parole for the first time in December 2011, at which time the Board declined to release him to parole supervision and ordered him held for an additional 24 months. When petitioner did not receive a timely response to his administrative appeal, he commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.

Among the challenges raised by petitioner is a claim that the Board improperly failed to utilize a “COMPAS re-entry risk assessment” instrument as required pursuant to the amendments to Executive Law § 259-c (4), which became effective October 1, 2011 (see L 2011, ch 62, § 1, part C, § 1, subpart A, § 49 [f]). For the reasons stated in our decision in Matter of Garfield v Evans (108 AD3d 830 [2013]), handed down after Supreme Court’s judgment herein, we agree (see Matter of Thomas v Evans, 109 AD3d 1069 [2013]; Matter of Malerba v Evans, 109 AD3d 1067 [2013]). In light of the foregoing, petitioner’s remaining contentions are academic.

Peters, P.J., McCarthy 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.