Petitioner appeals from an order of the Supreme Court, Bronx County (Mark S. Friedlander, J.), entered February 4, 2011, which denied the CPLR article 78 petition to annul respondent's determination finding that petitioner violated the conditions of his parole, revoking his parole and imposing on him an assessment of additional imprisonment, and granted respondent's cross motion to dismiss the petition.
Steven Banks, The Legal Aid Society, New York (Elon Harpaz of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York (Simon Heller and Alison J. Nathan of counsel), for respondent.
Angela M. Mazzarelli, J.P. David Friedman James M. Catterson Dianne T. Renwick Helen E. Freedman, JJ.
This appeal requires us to determine whether a parole revocation proceeding may go forward against a parolee who has been found mentally incompetent to stand trial in a criminal prosecution based on the same charges that are at issue in the revocation proceeding. We hold that, under the circumstances of this case, the revocation proceeding may not go forward.
Petitioner Edwin Lopez was sentenced to 15 years to life on a second-degree murder conviction in the 1970s, and was released from prison to lifetime parole supervision on July 20, 1994. On or about August 11, 2008, while he was a resident of a mental health facility, petitioner allegedly assaulted another patient, for which he was arrested and charged with third-degree assault and two lesser charges. The court ordered a psychiatric examination to determine petitioner's fitness to stand trial (see CPL article 730), and the two examining psychologists submitted reports, dated August 25, 2008, finding that he suffered from dementia, probably secondary to head trauma, and was unfit to stand trial . Thereafter, a final order of observation was filed committing petitioner to the custody of the Office of Mental Health (see CLP 730.40), and the criminal charges against him were dismissed (see CPL 730.40).
On August 27, 2008, two days after the date of the reports finding petitioner unfit to stand trial, a parole revocation proceeding was commenced against him. It was alleged that petitioner's conduct in the incident of August 11, 2008 — the same incident underlying the aborted criminal prosecution — constituted a violation of the conditions of his parole. Before witnesses were called at the final hearing on November 13, 2008, petitioner's counsel objected to going forward on the ground, among others, that, by reason of his mental disability, as determined in the criminal case, he was unable either to understand the nature of the proceeding or to assist in his own defense. This objection was overruled and, after the hearing was completed on December 12, 2008, the Administrative Law Judge found that petitioner had violated his parole and recommended an assessment of 24 months of additional imprisonment, which the Parole Board accepted. On his administrative appeal, petitioner argued that the finding that he was unfit for a criminal trial meant that he was likewise unfit to defend himself in the parole revocation proceeding. In denying the appeal, the administrative panel stated that "mental illness is not an excuse for a parole violation."
Petitioner subsequently commenced this article 78 proceeding challenging the revocation of his parole. The petition contends that the parole revocation hearing should not have gone forward in light of the finding, rendered just two days before the institution of the parole revocation proceeding, that petitioner was unfit to stand trial on criminal charges based on the same conduct that was alleged to have constituted the parole violation. Petitioner now appeals from the judgment of Supreme Court denying his petition and granting respondent's cross motion to dismiss the proceeding. We reverse. 
We agree with petitioner that the basic requirements of due process applicable to a parole revocation proceeding (see Morrissey v Brewer, 408 U.S. 471 ) should now be construed to preclude going forward with such a proceeding in the event it is determined that the parolee is not mentally competent to participate in the hearing or to assist his counsel in doing so. As an Indiana appellate court recently observed in considering this issue: "Without competency, the minimal due process rights guaranteed to probationers at probation revocation hearings would be rendered useless" (Donald v State, 930 N.E.2d 76, 80 [Ind App 2010]; see also State v Qualls, 50
Ohio App.3d 56, 58, 552 N.E.2d 957, 960 [Ohio App 1988] ["the effectiveness of the minimal (due process) standards enumerated in Morrissey... may be rendered null if the defendant is not competent to understand and to participate in or to assist counsel in participating in the proceedings"]). We respectfully decline to follow the contrary holdings on this issue of certain older decisions of other departments of the Appellate Division (see Matter of Newcomb v New York State Bd. of Parole, 88 A.D.2d 1098 [3d Dept 1982], lv denied 57 N.Y.2d 605 , cert denied 459 U.S. 1176 ; People ex rel. Porter v Smith, 71 A.D.2d 1056 [4th Dept 1979]; People ex rel. Newcomb v Metz, 64 A.D.2d 219 [3d Dept 1978]).
In this case, there is no question that petitioner was incompetent at the time of his parole revocation hearing. On August 25, 2008, only two days before the parole revocation proceeding was instituted and less than three months before the commencement of the hearing thereon the following November, he was found incompetent to stand trial on criminal charges based on the same conduct alleged to constitute the violation of his parole  Since a determination of incompetency was here made independent of the parole revocation proceeding, the instant appeal does not present us with the questions of (1) whether the parole board has authority to determine a parolee's competence to undergo a revocation hearing and, (2) if not, what should be done when it appears that a parolee charged with a violation may be incompetent. Nevertheless, the concurrence would have us address these unposed questions in a manner sure to cause significant disruption to the parole system of this state. The concurrence apparently would hold that, until the Legislature enacts statutory provisions specifying the procedures to be followed in determining the competency of an alleged parole violator, the parole board may not make such a determination. Given the holding that an incompetent parolee may not be subjected to a parole revocation hearing, the effect of adopting the concurrence's position would be to bring to a halt any parole revocation proceeding against a person willing to place his or her own competence in question. In essence, this would excuse such a parolee from complying with the conditions of his or her parole until the Legislature acts.
Even if this appeal did present the question of the authority of the parole board to determine the competence of an alleged parole violator, we would see no reason to hold that the board may not render such a determination (in a case where it appears that the parolee's competence may reasonably be questioned) until the Legislature has enacted procedures to govern the making of such a determination. After all, even Newcomb held that the board of parole should, in an appropriate case, "consider... a person's mental competency during the parole revocation process" (64 A.D.2d at 222), albeit only as a "possibly mitigating or excusing" factor rather than as a prerequisite to going forward with a revocation hearing (88 A.D.2d at 1098, citing 64 A.D.2d at 223). To be sure, it would be beneficial for the Legislature to enact procedures and schedules to govern competency issues in parole revocation proceedings. However, contrary to the concurrence's assertion that we "agree that the Legislature must act" (emphasis added), until the Legislature chooses to take action, we are not aware of any impediment, either in constitutional principle or in article 12-B of the Executive Law (governing the jurisdiction and operation of the board of parole), to the board, upon ascertaining that the parolee's competence is in question, receiving evidence on the parolee's mental condition and ruling on his or her competence at the outset of a revocation hearing. Of course, a finding of competence will be subject to judicial review in an article 78 proceeding brought to challenge an ultimate revocation of parole.
The concurrence professes to believe that the absence of a statute expressly authorizing the board to determine the competence of an alleged parole violator means that, until the statutory scheme is amended, a revocation proceeding must come to a halt whenever it reasonably appears that the alleged violator may be incompetent. We disagree. "It is well settled that an agency's powers include not only those expressly conferred, but also those required by necessary implication '" (Matter of Mercy Hosp. of Watertown v New York State Dept. of Social Servs., 79 N.Y.2d 197, 203 , quoting Matter of City of New York v State of N.Y. Commn. on Cable Tel., 47 N.Y.2d 89, 92  [emphasis added]; see also 2 NY Jur 2d, Administrative Law § 26). For example, in Mercy Hospital, the Court of Appeals held that the Department of Social Services' use of random sample audits (rather than individual review of all cases within the audit period) to determine whether the petitioner had received Medicaid overpayments was, by necessary implication, within the agency's statutory authority to administer the Medicaid program.
From our holding that an alleged parole violation cannot be adjudicated while the parolee is incompetent, it follows that a determination of the parolee's competence (where it is in question) is a necessary prerequisite to the board's determining whether to exercise its statutory "power to revoke the community supervision status" of the parolee (Executive Law § 259-c)  The situation is analogous to circumstances giving rise to a question of administrative jurisdiction, where it is recognized that, "[l]ike a judicial tribunal, an administrative tribunal has jurisdiction to determine its own jurisdiction" (Pesta v Department of Corr., 63
So.3d 788, 791 [Fla App 2011]; see also City of Whitehall v Ohio Civil Rights Commn., 74
Ohio St.3d 120, 123-124, 656 N.E.2d 684, 688  ["a(n) (administrative) tribunal having general subject matter jurisdiction of a case possesses authority to determine its own jurisdiction"]; 2 Am Jur 2d, Administrative Law § 284). As the Connecticut Supreme Court has explained:
"Where there is in place a mechanism for adequate judicial review..., it is the general rule that an administrative agency may and must determine whether it has jurisdiction in a particular situation. When a particular statute authorizes an administrative agency to act in a particular situation it necessarily confers upon such agency authority to determine whether the situation is such as to authorize the agency to act" (Greater Bridgeport Trans. Dist. v Local Union 1336, Amalgamated Trans. Union, 211 Conn 436, 439, 559 A.2d 1113, 1115  [internal quotation marks and brackets omitted]).
Similarly, here, the statute authorizing the parole board to determine whether a parolee has violated parole necessarily confers upon the board authority to determine whether the parolee possesses the mental competence required for such a determination to be rendered in accordance with due process. 
While the concurrence takes us to task for stating that the parole board should conduct a competency inquiry when it reasonably appears that the alleged violator may be incompetent, our concurring colleague overlooks the fact that, under his analysis, so too will the board have to determine whether the parolee's competence has been placed in question. Moreover, we see no basis for the concurrence's implication that something like chaos will ensue if the board makes competency determinations — determinations which, to reiterate, will be subject to judicial review — before the Legislature acts. To the contrary, in view of our holding that a parole revocation hearing cannot go forward against a mentally incompetent parolee, it would be far more disruptive to prohibit a parole board to determine the competency of a parolee charged with a parole violation. In any event, as previously noted, the question need not be reached in this case, given that petitioner was adjudged incompetent to stand trial in the criminal prosecution arising from the same conduct at issue in his parole revocation proceeding.
Accordingly, the order of the Supreme Court, Bronx County (Mark S. Friedlander, J.), entered February 4, 2011, which denied the CPLR article 78 petition to annul respondent's determination finding that petitioner violated the conditions of his parole, revoking his parole and imposing on him an assessment of 24 months of additional imprisonment, and granted respondent's cross motion to dismiss the petition, should be reversed, on the law, without costs, the petition granted, respondent's determination annulled, petitioner reinstated to parole, and the cross motion denied.
All concur except Catterson, J. who concurs in a separate Opinion.
CATTERSON, J. (concurring)
In this article 78 proceeding, I concur with the determination that a finding of mental incompetency to stand trial on misdemeanor charges bars not only criminal prosecution but also a subsequent parole revocation hearing where the alleged parole violation is based on the same conduct that gave rise to the misdemeanor charges. However, I write separately to emphasize that the specific circumstances of this case allow the Court to find in favor of the petitioner without considering the concomitant concerns that have plagued other jurisdictions, namely that the parolee "will remain free as a danger to society because of his unfitness." People v. Davis, 127 Ill.App.3d 49, 61, 468 N.E.2d 172, 181 (1984).
Thus, our decision today also serves to highlight the deficiencies of the statutory scheme. While asserting that this appeal does not require this Court to consider those deficiencies, the majority, in response to this concurrence, posits that the Parole Board may "rul[e] on [a parolee's] competence" until such time as the Legislature amends the statutory scheme. For the reasons set forth more fully below, in my opinion the Parole Board is not authorized to make such determinations.
The record reflects the following: More than 25 years ago the petitioner was convicted of murder in the second degree and sentenced to a prison term of 15 years to life. He was paroled on July 20, 1994. In 2004, he was admitted to an Office of Mental Health (hereinafter referred to as "OMH") psychiatric facility. On August 11, 2008, while on lifetime parole supervision and a resident of the OMH facility, the petitioner allegedly grabbed another patient by the neck and scratched him in the course of a dispute over which television ...