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In re Warmuth

Supreme Court of New York, Third Department

October 10, 2013

In the Matter of DOUGLAS WARMUTH, Appellant,
v.
NEW YORK STATE DIVISION OF PAROLE, Respondent

Calendar Date: September 18, 2013

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.

Before: Peters, P.J., Stein, Spain and Egan Jr., JJ.

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 A.D.3d 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.


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