Opinion
2011-09-30
In The Matter of Jermaine BAKER, Petitioner,v.Brian FISCHER, Commissioner, New York State Department of Correctional Services, Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Edward L. Chassin of Counsel), for petitioner.Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of Counsel), for respondent.Memorandum:
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered March 2, 2011) to review a determination of respondent. The determination denied the application of petitioner for temporary release.
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination denying his application for temporary release to a substance abuse treatment program. We note at the outset that the proceeding was improperly transferred to this Court pursuant to CPLR 7804(g) because no substantial evidence question is raised herein (see generally CPLR 7803 [4]; Correction Law § 855[9]; Matter of Tatta v. Dennison, 26 A.D.3d 663, 809 N.Y.S.2d 296, lv. denied 6 N.Y.3d 714, 816 N.Y.S.2d 750, 849 N.E.2d 973; Matter of Gonzalez v. Wilson, 106 A.D.2d 386, 482 N.Y.S.2d 302). Nevertheless, we consider the merits of the petition in the interest of judicial economy (see generally Matter of La Rocco v. Goord, 19 A.D.3d 1073, 796 N.Y.S.2d 268). Here, petitioner's escalating criminal history, especially the circumstances of his instant offense, raised rational concerns regarding whether petitioner was sufficiently trustworthy to participate in a temporary release program and whether his release would pose a threat to community safety (see Matter of Wallman v. Joy, 304 A.D.2d 996, 760 N.Y.S.2d 560; Matter of Romer v. Goord, 242 A.D.2d 574, 662 N.Y.S.2d 132, lv. denied 91 N.Y.2d 811, 671 N.Y.S.2d 715, 694 N.E.2d 884). Thus, the determination denying petitioner's application for temporary release was not “affected by irrationality bordering on impropriety,” nor did respondent violate any statutory requirement or deny a constitutional right of petitioner ( Gonzalez, 106 A.D.2d at 386–387, 482 N.Y.S.2d 302).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
SCUDDER, P.J., CENTRA, FAHEY, GREEN, and GORSKI, JJ., concur.