                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 7, 2016                   520886
________________________________

In the Matter of PHILIP
   HAWTHORNE,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

TINA M. STANFORD, as Chair
   of the New York State
   Board of Parole,
                    Appellant.
________________________________


Calendar Date:   November 18, 2015

Before:   Peters, P.J., Garry, Egan Jr., Rose and Devine, JJ.

                             __________


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

      Gibson, Dunn & Crutcher, LLP, New York City (Darcy C.
Harris of counsel) and Jennifer J. Parish, Urban Justice Center,
New York City, for respondent.

                             __________


Garry, J.

      Appeals (1) from a judgment of the Supreme Court (LaBuda,
J.), entered June 18, 2014 in Sullivan County, which granted
petitioner's application, in a proceeding pursuant to CPLR
article 78, to annul a determination of the Board of Parole
denying petitioner's request for, among other things, parole
release, and (2) from a judgment of said court, entered November
6, 2014 in Sullivan County, which, upon reconsideration, adhered
to its prior decision.
                              -2-                520886

      In March 2009, petitioner pleaded guilty to a charge of use
of a child in a sexual performance and was sentenced to a prison
term of 5 to 15 years. Petitioner obtained an earned eligibility
certificate during his incarceration (see Correction Law § 805),
and appeared before the Board of Parole in March 2013. The Board
denied release. Petitioner thereafter commenced this CPLR
article 78 proceeding, challenging the Board's decision as
arbitrary and capricious and alleging, in essence, that the Board
had failed to consider his mental illness in the review process.
Supreme Court granted the petition, directed that a de novo
hearing be conducted and further required the Board to administer
a COMPAS Risk and Needs Assessment instrument (hereinafter the
COMPAS assessment) tailored to address petitioner's mental
illness. Thereafter, the court issued a subsequent judgment
denying respondent's motion for leave to reargue and renew.1
Respondent appeals from both judgments.2

      The Board is charged with considering whether "there is a
reasonable probability that, if [an] inmate is released, he [or
she] will live and remain at liberty without violating the law,
and that his [or her] release is not incompatible with the
welfare of society and will not so deprecate the seriousness of
his [or her] crime as to undermine respect for the law"


    1
        As Supreme Court's subsequent judgment addressed the
underlying merits, we deem Supreme Court to have granted
reargument and then adhered to its prior determination (see CPLR
5701 [a] [2] [viii]; Rodriguez v Jacoby & Myers, LLP, 126 AD3d
1183, 1184 [2015], lv denied 25 NY3d 912 [2015]).
    2
        Petitioner again appeared before the Board during the
pendency of this appeal and was denied release. Both parties
argue that this reappearance did not cause the appeal to be moot.
We agree, finding that the exception to the mootness doctrine
applies. Supreme Court's disposition required specific relief in
a manner that continues to affect the parties' respective rights
and will recur and evade review unless it is addressed (see
Matter of Lebron v Alexander, 68 AD3d 1476, 1477 [2009]; Matter
of Lovell v New York State Div. of Parole, 40 AD3d 1166, 1167
[2007]).
                               -3-                520886
(Executive Law § 259-i [2] [c] [A]). "The decision to grant
parole release is discretionary, but the Board is required to
consider certain guidelines in making its determination" (Matter
of Hamilton v New York State Div. of Parole, 119 AD3d 1268, 1269
[2014] [citations omitted]; see Matter of Silmon v Travis, 95
NY2d 470, 477 [2000]). These guidelines include such factors as
the inmate's institutional record, his or her release plans, the
seriousness of the offense, and his or her prior criminal record
(see Executive Law § 259-i [2] [c] [A] [i], [iii], [vii], [viii];
9 NYCRR 8002.3 [a] [1], [3], [7], [8]). In 2011, the law was
amended to further require that the Board's "review must include
an instrument that measures rehabilitation and the likelihood of
success on parole" (Matter of Montane v Evans, 116 AD3d 197, 202
[2014], lv dismissed 24 NY3d 1052 [2014]; see Executive Law §§
259-c [4]; 259-i [2] [c]). The Board utilizes the COMPAS
assessment to satisfy this requirement (see Matter of Symes v New
York State Bd. of Parole, 117 AD3d 959, 959 [2014]).

      Here, it is undisputed that petitioner has a significant
history of mental illness. He has no prior history of criminal
conduct. Before committing the underlying crime, he had obtained
Associate's and Bachelor's degrees, was working on obtaining a
Master's degree, and had been employed as a substitute teacher
and a tutor. In the period immediately preceding the criminal
conduct, he was suffering from agoraphobia related to his mental
illness and had withdrawn from all activities, including work and
school.3 His crime involved using computer communications to
pose as a 16-year-old boy for the purpose of exchanging nude
photos with a 13-year-old girl. There was no physical contact
between petitioner and his young victim; all of their exchanges
were computer-based. Petitioner's online conduct grew worse over
time, and he ultimately threatened the victim that he would
distribute and share her photos if she failed to engage in
specific, exceptionally degrading conduct at his direction.



     3
        The record fails to reveal where petitioner was residing
at this time; there are some indications that he had been
attempting to live on his own, and others that he had been
residing with either his mother or his father.
                              -4-                520886
      In April 2009, after petitioner was committed to the
custody of the Department of Corrections and Community
Supervision (hereinafter DOCCS), he was given an initial
psychiatric screening. He was diagnosed with schizoaffective
disorder and given an Office of Mental Health service level
designation of 1 – the highest level of services, indicating a
diagnosis of a major mental illness and/or severe personality
disorder with active symptoms. Several psychiatric medications
were prescribed. Following his transfer several months later to
the Midstate Correctional Facility, his mental health level was
downgraded to service level 2, and he was placed in the general
population. In October 2009, his mental health level was again
downgraded, to service level 3, which indicates a need for short-
term psychiatric medication for relatively minor disorders. In
January 2010, a physician at Midstate determined that petitioner
no longer required any psychiatric medications. Following the
discontinuance of his medication, petitioner became actively
psychotic, lost 40 pounds and stopped attending to basic hygiene.
Petitioner's mother, who had maintained regular and frequent
contact during his incarceration, noticed the changes almost
immediately. She wrote a series of urgent letters describing
petitioner's deteriorating mental health and pleading for
appropriate treatment, but these letters did not apparently
generate any timely response. Petitioner was ultimately
reevaluated in March 2010, by which time he had been placed in
the special housing unit (hereinafter SHU) as a result of
disciplinary incidents. Upon reevaluation, he was found to meet
the criteria for "serious mental illness," which entitled him to
receive out-of-cell mental health treatment while confined in the
SHU.4 His mental health level was raised, his medications were
reinstated, and he was placed in therapeutic housing facilities.

      There are five disciplinary violations in petitioner's
record that arose within the four months immediately following


    4
        The legislation that now requires prisoners who are
determined to have serious mental illness to be diverted from the
SHU into residential mental health treatment had not yet taken
effect (see Correction Law § 137 [6] [d] [i], as added by L 2008,
ch 1, §§ 4, 8 [a]).
                              -5-                520886
the discontinuance of his psychiatric medication. The offenses
charged included refusing to obey direct orders, creating a
disturbance and engaging in violent conduct. The most grave
charges, of violent conduct, arose from an incident in which he
struck and kicked correction officers as they attempted to
restrain him; on another occasion he refused to enter his cell
and lay on the floor until officers moved him, and a third
incident arose when he hid under his bed and refused to come out
until he was physically removed. Outside of the four months in
which he was not treated for his mental illness, petitioner has
maintained an almost-perfect disciplinary record, incurring only
one tier II disciplinary infraction in July 2011 for being "out
of place," apparently resulting from his mistaken belief that he
was scheduled to attend a meeting. Overall, following the
reinstatement of appropriate treatment and medication, the record
reveals that petitioner has functioned very well.

      The therapy reports in the record indicate that petitioner
has accepted responsibility for his criminal conduct and
understands that he must continue to address the conditions that
led to this conduct. His participation in programming has been
described as "excellent," "exceptional" and "outstanding." He
has served as a group leader and was described by the supervisor
of a behavior modification group as an "asset to the program and
to his peers." He has expressed remorse for the harm he caused
to the young victim. In the course of the parole interview,
petitioner described his criminal conduct as "a disgusting
thing." The record further reveals that petitioner has
substantial community and family support in place to aid his re-
entry upon his eventual release from incarceration. There are
identified resources for obtaining housing and employment, and
the Urban Justice Center, which has worked with him for several
years, has agreed to provide social work and assist his
enrollment in continuing mental health and rehabilitation
treatment services.

      Prior to petitioner's appearance before the Board, a COMPAS
assessment was prepared (see Executive Law § 259-c [4]). This
instrument, consisting of 74 questions, indicated that petitioner
was at a low risk of arrest (2 out of 10), or absconding (1 out
of 10), and was unlikely to engage in re-entry substance abuse (1
                              -6-                520886
out of 10). He scored low (3 out of 10) for history of violence,
but in the medium range for risk of felony violence (7 out of
10). He scored high for prison misconduct (10 out of 10). The
Board members reviewed this instrument at the outset of
petitioner's interview, and then conducted a fairly comprehensive
colloquoy with him addressing various factors, specifically
including a review of his prison disciplinary history.

      In its determination, the Board acknowledged several
positive factors, including petitioner's programming and
community support, and stated that it had taken his mental
illness into account, but relied upon his crime and his
disciplinary history in denying release. After discussing
petitioner's crime, the Board wrote, "Your poor behavior is noted
and remains disturbing. While your mental health needs at the
time are considered, your conduct in a structured environment has
been marginal. Due to your deviant actions with a child, and
marginal compliance with DOCCS rules, your release at this time
is denied[.] There is a reasonable probability you would not
live and remain at liberty without violating the law."

      We agree with respondent that the record does not support
petitioner's assertion that the Board relied solely or primarily
upon the COMPAS assessment in reaching its determination.
Indeed, some of the discussion within the hearing transcript
suggests that the COMPAS assessment may even have been discounted
to some degree. Nonetheless, it is clear that the determination
strongly relied upon, and even emphasized, petitioner's
disciplinary history. In this regard, the determination lacks
record support. Other than the disciplinary issues that arose
when petitioner's illness was untreated, there is simply no
record basis for finding that petitioner's "conduct in a
structured environment has been marginal" or that there was
"marginal compliance with DOCCS rules." Only during the period
when petitioner was deprived of medication for his mental illness
– not through his own fault, but as the result of a medical
decision imposed upon him by a prison physician – did petitioner
repeatedly fail to comply with prison rules. The Board failed to
acknowledge this critical fact, noting that it had taken
petitioner's mental illness into account but failing to address
the fact that most of the infractions that it found "disturbing"
                              -7-                520886
occurred while this illness was not being treated.

      Considering this factual background, we agree with Supreme
Court that the Board's determination was irrational (see Matter
of Comfort v New York State Bd. of Parole, 101 AD3d 1450, 1451
[2012]). Further, it was irrational to such a degree that it
cannot withstand judicial scrutiny, despite the very limited
scope of our review (see Executive Law § 259-i [5]; Matter of
Hamilton v New York State Div. of Parole, 119 AD3d at 1269). As
petitioner argues, a fair review of this record compels the
conclusion that the determination to remove him from all
medication for his mental illness led to a psychotic breakdown
that rendered him unable to comply with prison regulations during
the period when the disciplinary infractions occurred. To
withhold petitioner's necessary medications was apparently an
error of medical judgment. However, for the Board to then rely
upon petitioner's conduct during the psychotic crisis that was
thus precipitated as a primary ground for denying his release is
so inherently unfair and unreasonable that it meets the high
standard of "irrationality bordering on impropriety" warranting
our intervention (Matter of Russo v New York State Bd. of Parole,
50 NY2d 69, 77 [1980]). To hold otherwise would, in effect,
result in punishing petitioner with continued incarceration for
the failure of prison officials to provide him with proper
treatment for his mental illness – a result that we cannot
sanction. Accordingly, we agree with Supreme Court that
petitioner must be afforded a de novo hearing before the Board.

      In reversing the Board's determination, Supreme Court found
that the COMPAS assessment utilized by the Board was inadequate
for use with inmates exhibiting mental illness and directed the
Board to prepare a COMPAS assessment that has been "tailored" to
address petitioner's mental health needs.5 We agree with
respondent that the court erred in this regard. As respondent


    5
        There are apparently multiple versions of the COMPAS
assessment available; respondent argues that this issue was not
properly preserved, but we note that within petitioner's initial
administrative appeal, he asserted that a 95-question version is
routinely utilized by probation departments throughout the state.
                              -8-                  520886
asserts, courts do not have power to substitute their judgment
for that of the Board; the scope of judicial review and direction
is limited. The legislation that required the Board to utilize a
risk and needs assessment did not deprive it of discretion in
determining how to fulfill this requirement (see Executive Law
§ 259-c [4]; Matter of Montane v Evans, 116 AD3d at 201-202; see
generally People ex rel. Donohoe v Montanye, 35 NY2d 221, 226-227
[1974]). The court's specific findings and directions pertaining
to the COMPAS assessment exceeded the scope of its authority and
must be reversed. We need not reach the issue of whether
compliance with the court's directive is feasible.

     Peters, P.J., Egan Jr., Rose and Devine, JJ., concur.



      ORDERED that the judgments are modified, on the law,
without costs, by reversing so much thereof as directed the Board
of Parole to administer and prepare an alternative COMPAS Risk
and Needs Assessment instrument, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
