KARLIN, DANIEL v. CULLY, MALCOLM R. ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
237
CA 12-01125
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.
IN THE MATTER OF DANIEL KARLIN,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
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.
Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Penny M. Wolfgang, J.), entered May 2, 2012 in a
proceeding pursuant to CPLR article 78. The judgment dismissed the
petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
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 AD3d 1015, 1015; see Matter of Karlin v Alexander, 57
AD3d 1156, 1156, lv denied 12 NY3d 704). 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 NY2d 470, 476; Matter of Gaston v Berbary, 16 AD3d 1158,
1159). 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 AD2d 423,
432-433, affd 83 NY2d 788; Matter of Johnson v New York State Div. of
-2- 237
CA 12-01125
Parole, 65 AD3d 838, 839). 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 AD3d at 1015;
see Silmon, 95 NY2d at 476-477). 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 NY2d 69, 77; see Silmon, 95 NY2d at 476). 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 AD3d 1098, 1099).
Entered: March 22, 2013 Frances E. Cafarell
Clerk of the Court