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Karlin v. New York State Division of Parole

State of New York Supreme Court, Appellate Division Third Judicial Department


October 7, 2010

IN THE MATTER OF DANIEL KARLIN, APPELLANT,
v.
NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

Before: Cardona, P.J., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ.

Appeal from a judgment of the County Court of Franklin County (Feldstein, J.), entered April 22, 2010, which, among other things, 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.

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. In April 2009, he made his third appearance before the Board of Parole requesting to be released to parole supervision. The Board denied his request and ordered him held for an additional 24 months. Petitioner filed an administrative appeal and, when he did not receive a response within four months, commenced this CPLR article 78 proceeding. Subsequently, petitioner moved to certify the proceeding as a class action. Following joinder of issue, Supreme Court dismissed the petition and denied the motion. This appeal ensued.

We affirm. The record discloses that the Board chose to place particular emphasis on the serious nature of petitioner's crimes (see Matter of Ondrizek v Dennison, 39 AD3d 1114, 1115 [2007]; Matter of Valerio v Dennison, 35 AD3d 938, 939 [2006]), but also considered petitioner's program accomplishments, clean disciplinary record and postrelease plans in making its decision (see Matter of Cruz v New York State Div. of Parole, 39 AD3d 1060, 1062 [2007]; Matter of Thompson v New York State Div. of Parole, 30 AD3d 746, 746 [2006], lv denied 7 NY3d 716 [2006]). Inasmuch as the Board reviewed the relevant statutory factors outlined in Executive Law § 259-i and its decision does not exhibit "'irrationality bordering on impropriety'" (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we find no reason to disturb it. Petitioner's remaining arguments, including that his motion for class certification was improperly denied, have been considered and are rejected.

Cardona, P.J., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20101007

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