                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 10, 2014                     517069
________________________________

In the Matter of RICHARD
   RIVERA,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF
   PAROLE,
                    Respondent.
________________________________


Calendar Date:   June 6, 2014

Before:   Lahtinen, J.P., Stein, Egan Jr., Devine and Clark, JJ.

                             __________


     Richard Rivera, Dannemora, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Ellis, J.),
entered June 18, 2013 in Clinton 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 1981 and 1982, petitioner was convicted of a number of
crimes, the most serious of which was murder in the second degree
arising from his fatal shooting of an off-duty police officer,
for which he was sentenced to 25 years to life in prison (People
v Rivera, 171 AD2d 708 [1991], lv denied 78 NY2d 957 [1991]). In
September 2012, he made his second appearance before the Board of
Parole seeking to be released to parole supervision. The Board
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denied his request and ordered him held for an additional 24
months. Petitioner filed an administrative appeal and, when it
was not decided within four months, he commenced this CPLR
article 78 proceeding. Following service of respondent's answer,
Supreme Court dismissed the petition and this appeal ensued.

      Initially, petitioner contends that the Board failed to
comply with the statutory mandate included in recent amendments
to the Correction Law requiring the development of a transitional
accountability plan (hereinafter TAP) for inmates in prison, as
is set forth in the newly enacted Correction Law § 71-a (see L
2011, ch 62, § 1, part C, § 1, subpart A, § 16-a). The statute
requires the Department of Corrections and Community Supervision
(hereinafter DOCCS) to devise an individualized TAP for each
inmate "[u]pon admission" to prison based on his or her
"programming and treatment needs" for the purpose of "promot[ing]
the rehabilitation of the inmate and [his or her] successful and
productive reentry and reintegration into society upon release"
(Correction Law § 71-a [emphasis added]; see Mark Bonacquist,
2011 Supp Practice Commentary, McKinney's Cons Laws of NY, Book
10B, Correction Law § 71-a, 2014 Supp Pamph at 59-60). The
language of the statute clearly applies only to newly admitted
prisoners and is prospective in nature. Indeed, inasmuch as the
Legislature explicitly postponed the effective date for the newly
enacted Correction Law § 71-a until six months after passage (see
L 2011, ch 62, § 1, part C, § 1, subpart A, §§ 16-a, 49 [h]),
"'the Legislature evinced its intent that the provision only be
applied prospectively'" (Matter of McCaskell v Evans, 108 AD3d
926, 927 [2013], quoting Matter of Davidson v Evans, 104 AD3d
1046, 1046 [2013]; see Matter of Mulligan v Murphy, 14 NY2d 223,
226 [1964]; People v Sutton, 199 AD2d 878, 879 [1993]).

      Notably, Correction Law § 71-a specifically directs DOCCS,
not the Board, to develop a TAP to facilitate an inmate's
eventual transition back into society. The Board is then
expected to utilize the TAP, "where available," as part of its
evaluation in determining an inmate's suitability for parole
release (Matter of Montane v Evans, 116 AD3d 197, 203 [2014], lv
granted 23 NY3d 903 [2014]). Here, petitioner was admitted to
prison some 30 years before the statutory provision took effect,
and DOCCS did not prepare, nor does the statute require the
                              -3-                517069

preparation of, an individualized TAP for him that the Board
could consider in making its determination. The Board
nevertheless undertook a risk and needs assessment of petitioner
by utilizing a COMPAS Risk and Needs Assessment instrument (see
Executive Law § 259-c [4]). Accordingly, we reject petitioner's
claim that the Board failed to comply with the new statutory
requirement.

      Petitioner further asserts that he should have been
released to parole supervision based upon the COMPAS instrument
because it indicated that he was at a low risk to reoffend. The
COMPAS instrument, however, is only one factor that the Board was
required to consider in evaluating petitioner's request (see
Executive Law §§ 259-c [4]; 259-i [2] [c] [A]; see also Matter of
Partee v Evans, 117 AD3d 1258, 1259 [2014]; Matter of Montane v
Evans, 116 AD3d at 203). The record discloses that the Board
considered the other relevant statutory factors, including the
nature of petitioner's crimes, his criminal history, his prison
disciplinary record, his program accomplishments and his
postrelease plans (see Executive Law § 259-i [2] [c] [A]; Matter
of Martinez v Evans, 108 AD3d 815, 816 [2013]; Matter of Campbell
v Evans, 106 AD3d 1363, 1364 [2013]) and, notwithstanding the
favorable COMPAS instrument, its decision does not reflect
"'irrationality bordering on impropriety'" (Matter of Partee v
Evans, 117 AD3d at 1259, quoting Matter of Russo v New York State
Bd. of Parole, 50 NY2d 69, 77 [1980]). We have considered
petitioner's remaining contentions and find them to be lacking in
merit.

     Lahtinen, J.P., Stein, Egan Jr. and Clark, JJ., concur.
                        -4-                  517069

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
