Opinion
Argued November 15, 1989
Decided December 14, 1989
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
Dan Getman, Deborah Schneer and David C. Leven for appellant.
Robert Abrams, Attorney-General (Martin Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
MEMORANDUM.
The judgment of the Appellate Division should be affirmed, without costs.
In 1987, the inmate was convicted of murder in the first degree of a Deputy Sheriff and attempted murder in the first degree arising out of an unsuccessful escape attempt earlier that year and was sentenced to a term of 57 1/2 years to life. The determination of the Commissioner of State Department of Correctional Services that he should be committed to involuntary protective custody immediately upon his arrival at the facility is supported by substantial evidence. The heinous nature of the crimes of which he was convicted and the inmate's own admission that he threatened at trial four months earlier to escape again and kill those associated with prosecuting and sentencing him were a part of the record before the Hearing Officer and supplied the legal predicate in this case for the State Commissioner's determination. Respondent's interpretation of Department of Correctional Services regulations as authorizing the inmate's placement in involuntary protective custody in these circumstances was not irrational. The Appellate Division's judgment confirming the determination of the State Commissioner and dismissing the petition should therefore be affirmed.
The appellant inmate's claim challenging the 30-day periodic agency review of the continuation of the involuntary protective custody determination, though reached by the Appellate Division in the interest of justice, is not preserved for our review.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Judgment affirmed, without costs, in a memorandum.