Opinion
No. 507843.
August 5, 2010.
Appeal from a judgment of the Supreme Court (Teresi, J.), entered July 27, 2009 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services denying his application to participate in a temporary release program.
Frank Lapetina, Hudson, appellant pro se.
Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondents.
Before: Mercure, J.P, Spain, Lahtinen, Kavanagh and Egan Jr., JJ.
Petitioner, a prison inmate, applied to participate in a temporary release program and his application was approved by the facility's Temporary Release Committee. However, it was thereafter denied by a reviewer for the Department of Correctional Services. On administrative appeal, respondent Commissioner of Correctional Services (hereinafter respondent) up-held that determination, after which petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner now appeals.
We affirm. Participation in a temporary release program is not a right, but a privilege and, thus, our review "is limited to whether the determination `violated any positive statutory requirement or denied a constitutional right of the inmate and whether [it] is affected by irrationality bordering on impropriety'" ( Matter of Dixon v Recore, 271 AD2d 778, 778, quoting Matter of Gonzalez v Wilson, 106 AD2d 386, 386-387; accord Matter of Collins v Goord, 24 AD3d 1048, 1049). Here, respondent found petitioner unsuitable for temporary release based upon, in part, the nature of the crimes committed and petitioner's recidivist history. Those factors dearly provide a rational basis for respondent's determination ( see 7 NYCRR 1900.4 [1], [2], [3]; Matter of Herber v Joy, 61 AD3d 1142, 1142-1143 T2009]; Matter of Wiggins v Joy, 46 AD3d 1035, 1036; Matter of Collins v Goord, 24 AD3d at 1049). The fact that some inaccuracies may have been articulated in respondent's denial — such as petitioner being armed with a baseball bat during the commission of the crime for which he is incarcerated — does not warrant annulment where the other factors relied upon provide a rational basis for the determination ( see Matter of Collins v Goord, 24 AD3d at 1049; Matter of Pena v Roberts, 15 AD3d 707, 708; Matter of Peana v Recore, 257 AD2d 862, 863-864).
With regard to petitioner's contention that respondent prematurely rendered a decision on his administrative appeal, we find that respondent's amended decision, specifically stating that petitioner's memorandum had been considered, remedied the procedural error complained of ( see Matter of Adams v Joy, 48 AD3d 914, 915). We have examined petitioner's remaining contentions and have found them to be without merit.
Ordered that the judgment is affirmed, without costs.