SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
127
CA 13-00176
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
IN THE MATTER OF ROBERT CARDEW,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT-RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF
COUNSEL), FOR PETITIONER-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF
COUNSEL), FOR RESPONDENT-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 judgment denied the petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: In this CPLR article 78 proceeding, petitioner, an
inmate at Attica Correctional Facility, appeals from a judgment
denying his petition, which alleged that respondent acted arbitrarily
and capriciously in denying a grievance he filed against the
Department 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 sufficient information and resources
to prepare a viable postrelease plan for housing and employment,
without which he cannot obtain release to parole supervision. We
conclude that Supreme Court properly denied the petition.
We reject petitioner’s contention that he was required to have a
postrelease plan for housing and employment in place in order to be
released on parole. We note that a “release plan[] [involving] . . .
employment” is one of eight statutory factors 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 to require an
inmate to secure approved housing before being released on parole (see
People ex rel. Beam v Hodges, 286 AD2d 936, 937). Here, however,
there is no indication in the record that the Parole Board required
petitioner to have a postrelease employment or housing plan before he
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CA 13-00176
could be released on parole, or that the Parole Board denied
petitioner parole because petitioner failed to fulfill that purported
requirement. In fact, it appears from the record that petitioner was
denied release by the Parole Board following his first parole hearing
in 2008 because of the severity of his offense and his poor
disciplinary record while incarcerated.
In any event, even assuming, arguendo, that DOCCS 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; Matter of Lynch v West, 24 AD3d 1050, 1051), we conclude
that DOCCS fulfilled that duty. The record establishes that DOCCS
provided petitioner with all the materials and resources it had
available for Broome County, where petitioner expects to reside if
released, as well as hundreds of pages of information regarding
housing and employment in counties throughout the state. Petitioner
was also referred to the Broome County Reentry 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), the TSC’s counselors, and a facility parole officer.
We reject petitioner’s further contention that DOCCS acted
arbitrarily and capriciously in denying his request for access to a
telephone, email and the internet for purposes of securing housing and
employment. Even assuming, arguendo, that DOCCS’s policy 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 legitimate penological interests’ ” (Matter
of Walton v New York State Dept. of Correctional Servs., 13 NY3d 475,
491, quoting Turner v Safley, 482 US 78, 89). Petitioner has failed
to establish that the restriction is unduly burdensome and is not
related to the legitimate interest of prison safety (see Matter of
Malik v Coughlin, 157 AD2d 961, 962-963; Matter of Montgomery v Jones,
88 AD2d 1003, 1003-1004).
Entered: March 21, 2014 Frances E. Cafarell
Clerk of the Court