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, 452 N.Y.S.2d 912 [3d Dept.1982],lv. denied57 N.Y.2d 605 [1982],cert. denied459 U.S. 1176, 103 S.Ct. 828, 74 L.Ed.2d 1023 [1983];People ex rel. Porter v. Smith, 71 A.D.2d 1056, 420 N.Y.S.2d 817 [4th Dept.1979];People ex rel. Newcomb v. Metz, 64 A.D.2d 219, 409 N.Y.S.2d 554 [3d Dept.1978] ). In this case, there is no question that petitioner was incompetent at the time of his parole revocation hearing.
The court cited People ex rel. Newcomb v. Metz, 64 A.D.2d 219, 409 N.Y.S.2d 554 (3d Dept.1978) and Matter of Newcomb v. New York State Bd. of Parole, 88 A.D.2d 1098, 452 N.Y.S.2d 912 (3d Dept.1982), lv. denied 57 N.Y.2d 605 (1982), cert. denied 459 U.S. 1176, 103 S.Ct. 828, 74 L.Ed.2d 1023 (1983). Those decisions held that the Parole Board must consider a parolee's lack of mental competency as a mitigating factor when considering alleged parole violations, but “a determination of this question is not a condition precedent to the parole revocation proceeding” (Metz, 64 A.D.2d at 223, 409 N.Y.S.2d 554 ; see New York State Bd. of Parole, 88 A.D.2d at 1098–1099, 452 N.Y.S.2d 912 ; accord People ex rel. Porter v. Smith, 71 A.D.2d 1056, 420 N.Y.S.2d 817 [4th Dept.1979] ). The Appellate Division reversed, granted Lopez's petition, and reinstated Lopez to parole, holding that “the basic requirements of due process applicable to a parole revocation proceeding 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” (104 A.D.3d 105, 108, 957 N.Y.S.2d 59 [1st Dept.2012] [citation omitted] ).
consider a parolee's lack of mental competency as a mitigating factor when considering alleged parole violations, but “a determination of this question is not a condition precedent to the parole revocation proceeding” (Metz, 64 A.D.2d at 223, 409 N.Y.S.2d 554 ; see New York State Bd. of Parole, 88 A.D.2d at 1098–1099, 452 N.Y.S.2d 912 ; accord People ex rel. Porter v. Smith, 71 A.D.2d 1056, 420 N.Y.S.2d 817 [4th Dept.1979] ). The Appellate Division reversed, granted Lopez's petition, and reinstated Lopez to parole, holding that “the basic requirements of due process applicable to a parole revocation proceeding 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” (104 A.D.3d 105, 108, 957 N.Y.S.2d 59 [1st Dept.2012] [citation omitted] ).
There remains a question as to whether, following a hearing wherein a defendant is found incompetent, a violation of probation proceeding may go forward. In the rather analogous context of a revocation of parole proceeding, there are “certain older decisions” ( Lopez v. Evans, 104 A.D.3d 105, 107–10, 957 N.Y.S.2d 59) from the Appellate Division, Third and Fourth Departments, which hold that a parolee's mental competence is not a condition precedent to a revocation hearing ( People ex rel. Newcomb v. Metz, 64 A.D.2d 219, 223, 409 N.Y.S.2d 554 [3d Dept. 1978];People ex rel. Porter v. Smith, 71 A.D.2d 1056, 420 N.Y.S.2d 817 [4th Dept. 1979] ) but is merely a factor to be considered “in mitigation of, or as an excuse for, the charged violation” ( Matter of McCants v. Travis, 291 A.D.2d 594, 596, 737 N.Y.S.2d 416 [3d Dept. 2002] ). However, in Lopez, the Appellate Division, First Department, rejected this “older” line of cases and held that “the basic requirements of due process applicable to a parole revocation proceeding” require a predicate determination of competence before the revocation proceeding may commence ( Lopez v. Evans, 104 A.D.3d 105, 107–08, 957 N.Y.S.2d 59).
But while the Metz court determined that the parole board should indeed consider mental competency as a factor, the Third Department affirmed a parole revocation despite it being “undisputed that petitioner suffer[ed] from mental illness and ha[d] been diagnosed as a paranoid schizophrenic” (Newcomb v. N.Y. State Bd. of Parole, 88 A.D.2d 1098, 1099, 452 N.Y.S.2d 912 [3rd Dept.1982] ). Subsequent progeny have yielded the same result (see Huggins v. Coughlin, 76 N.Y.2d 904, 561 N.Y.S.2d 910, 563 N.E.2d 281 [1990] [upholding disciplinary action against an inmate because the committee considered his mental health and found it to not be a contributing factor, as symptoms were not presenting at the moment of violation]; People ex rel. Porter v. Smith, 71 A.D.2d 1056, 420 N.Y.S.2d 817 [4th Dept.1979] [finding defendant violated parole after assaulting nurses at a mental health institution into which he voluntarily admitted himself] ). Yet, the First Department, stating that a parolee's mental competency must certainly be consider as a factor, said there was “no reason to hold that the Board may not render such a determination” (Matter of Lopez v. Evans, 104 A.D.3d 105, 109, 957 N.Y.S.2d 59 [1st Dept.2012] ).
Evidently, numerous courts previously held the statute did not apply to a VOP hearing. See Newcomb v. N.Y. State Bd. of Parole, 88 A.D.2d 1098, 1099, 452 N.Y.S.2d 912 (3rd Dept.1982), lv. denied 57 N.Y.2d 605 (1982), cert. denied 459 U.S. 1176, 103 S.Ct. 828, 74 L.Ed.2d 1023 (1983), See also People ex rel. Porter v. Smith, 71 A.D.2d 1056, 420 N.Y.S.2d 817 (4th Dept.1979). However, in Lopez v. Evans, the First Department held that due process required that a defendant be "fit" and "competent" to proceed on a parole hearing.
The Newcomb court found that mental competency was a factor to be considered in the parole revocation process. The Fourth Department followed Newcomb in People ex rel. Porter v Smith ( 71 A.D.2d 1056). In considering the precedential effect to be afforded Newcomb and Porter, the court is mindful of the fact that prisoners in disciplinary proceedings are not entitled to the full range of due process safeguards mandated for parolees facing revocation (Wolff v McDonnell, supra, at 560-572).