| Matter of Cardew v Fischer |
| 2014 NY Slip Op 01862 [115 AD3d 1193] |
| March 21, 2014 |
| Appellate Division, Fourth Department |
| In the Matter of Robert Cardew, Appellant, v Brian Fischer,Commissioner, New York State Department of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forrespondent-respondent.
Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd,A.J.), entered September 13, 2012 in a CPLR article 78 proceeding. The judgmentdenied the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: In this CPLR article 78 proceeding, petitioner, an inmate at AtticaCorrectional Facility, appeals from a judgment denying his petition, which alleged thatrespondent acted arbitrarily and capriciously in denying a grievance he filed against theDepartment of Corrections and Community Supervision (DOCCS). In his grievance,petitioner, who is serving a sentence of 28 years to life for murder in the second degree,among other offenses, contended that DOCCS failed to provide him with sufficientinformation and resources to prepare a viable postrelease plan for housing andemployment, without which he cannot obtain release to parole supervision. We concludethat Supreme Court properly denied the petition.
We reject petitioner's contention that he was required to have a postrelease plan forhousing and employment in place in order to be released on parole. We note that a"release plan[ ] [involving] . . . employment" is one of eight statutoryfactors considered by the Parole Board in "making [a] parole release decision"(Executive Law § 259-i [2] [c] [A]), and that the Parole Board has the power torequire an inmate to secure approved housing before being released on parole (seePeople ex rel. Beam v Hodges, 286 AD2d 936, 937 [2001]). Here, however, there isno indication in the record that the Parole Board required petitioner to have a postreleaseemployment or housing plan before he could be released on parole, or that the ParoleBoard denied petitioner parole because petitioner failed to fulfill that purportedrequirement. In fact, it appears from the record that petitioner was denied release by theParole Board following his first parole hearing in 2008 because of the severity of hisoffense and his poor disciplinary record while incarcerated.[*2]
In any event, even assuming, arguendo, thatDOCCS has a duty to assist petitioner in finding appropriate housing and employment(see Correction Law § 201 [5]; cf. Matter of Breeden v Donnelli, 26 AD3d 660, 661[2006]; Matter of Lynch vWest, 24 AD3d 1050, 1051 [2005]), we conclude that DOCCS fulfilled thatduty. The record establishes that DOCCS provided petitioner with all the materials andresources it had available for Broome County, where petitioner expects to reside ifreleased, as well as hundreds of pages of information regarding housing and employmentin counties throughout the state. Petitioner was also referred to the Broome CountyReentry Taskforce and the CEPHAS group for assistance in making postrelease plans,and he was provided with access to his facility's Transitional Services Center (TSC), theTSC's counselors, and a facility parole officer.
We reject petitioner's further contention that DOCCS acted arbitrarily andcapriciously in denying his request for access to a telephone, email and the Internet forpurposes of securing housing and employment. Even assuming, arguendo, that DOCCS'spolicy of denying such access to inmates impinged upon petitioner's constitutional rights,we conclude that the policy is valid because it is " 'reasonably related to legitimatepenological interests' " (Matterof Walton v New York State Dept. of Correctional Servs., 13 NY3d 475, 491[2009], quoting Turner v Safley, 482 US 78, 89 [1987]). Petitioner has failed toestablish that the restriction is unduly burdensome and is not related to the legitimateinterest of prison safety (see Matter of Malik v Coughlin, 157 AD2d 961,962-963 [1990]; Matter of Montgomery v Jones, 88 AD2d 1003, 1003-1004[1982]). Present—Scudder, P.J., Fahey, Peradotto, Lindley and Sconiers, JJ.