Opinion
2013-03-22
In the Matter of Daniel KARLIN, Petitioner–Appellant, v. Malcolm R. CULLY, Superintendent, Collins Correctional Facility and Andrea W. Evans, Chairwoman, New York State Division of Parole, Respondents–Respondents.
Daniel Karlin, Petitioner–Appellant Pro Se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of Counsel), for Respondents–Respondents.
Daniel Karlin, Petitioner–Appellant Pro Se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of Counsel), for Respondents–Respondents.
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.
MEMORANDUM:
Petitioner appeals from a judgment dismissing his petition pursuant to CPLR article 78 seeking to annul the determination of the New York State Division of Parole (Parole Board) in May 2011, denying him parole release for the fourth time. “Petitioner is currently serving an aggregate term of 12 to 36 years in prison having been convicted in two different counties of numerous sex crimes involving young boys whom he supervised while he was employed as a camp counselor” (Matter of Karlin v. New York State Div. of Parole, 77 A.D.3d 1015, 1015, 908 N.Y.S.2d 474;see Matter of Karlin v. Alexander, 57 A.D.3d 1156, 1156, 870 N.Y.S.2d 130,lv. denied12 N.Y.3d 704, 876 N.Y.S.2d 705, 904 N.E.2d 842). While incarcerated, petitioner obtained his bachelor's degree and successfully participated in and led several programs. Nevertheless, “[d]iscretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined” (Executive Law § 259–i[2][c][A]; see Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501;Matter of Gaston v. Berbary, 16 A.D.3d 1158, 1159, 791 N.Y.S.2d 781). We reject the contention of petitioner that the Parole Board failed to consider the positive aspects of his institutional record and based its determination solely upon the seriousness of the crimes ( cf. Matter of King v. New York State Div. of Parole, 190 A.D.2d 423, 432–433, 598 N.Y.S.2d 245,affd.83 N.Y.2d 788, 610 N.Y.S.2d 954, 632 N.E.2d 1277;Matter of Johnson v. New York State Div. of Parole, 65 A.D.3d 838, 839, 884 N.Y.S.2d 545). Although the Parole Board focused on the “deviant” nature of petitioner's crimes, it “also considered petitioner's program accomplishments, clean disciplinary record and postrelease plans in making its decision” ( Karlin, 77 A.D.3d at 1015, 908 N.Y.S.2d 474;see Silmon, 95 N.Y.2d at 476–477, 718 N.Y.S.2d 704, 741 N.E.2d 501). Further, the Parole Board noted that, while petitioner's behavior had improved since his last parole interview, it was concerned with the “multiple disciplinary violations” that petitioner had accumulated before 2007. We conclude that there was no “showing of irrationality bordering on impropriety” with respect to the Parole Board's determination, and thus there is no basis for judicial intervention (Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225;see Silmon, 95 N.Y.2d at 476, 718 N.Y.S.2d 704, 741 N.E.2d 501). Finally, “[p]etitioner failed to raise [his equal protection claim] in his administrative appeal and thus has failed to exhaust his administrative remedies with respect to that contention” (Matter of Shapard v. Zon, 30 A.D.3d 1098, 1099, 815 N.Y.S.2d 852).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.