Opinion
11-19-2015
In the Matter of Kevin R. MAYS, Appellant, v. Cheryl MORRIS, as Director of Ministerial, Family and Volunteer Services of the Department of Corrections and Community Supervision, Respondent.
Kevin R. Mays, Elmira, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Kevin R. Mays, Elmira, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.
Before: PETERS, P.J., GARRY, ROSE and CLARK, JJ.
CLARK, J.Appeal from a judgment of the Supreme Court (Breslin, J.), entered November 26, 2013 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying his request to participate in the family reunion program.After holding up a toll collector at gun point, petitioner was convicted of robbery in the first degree and robbery in the second degree for which he was sentenced to 25 years to life in prison (People v. Mays, 232 A.D.2d 332, 649 N.Y.S.2d 409 [1996], lv. denied 89 N.Y.2d 926, 654 N.Y.S.2d 728, 677 N.E.2d 300 [1996] ; see Mays v. Kelly, U.S. Dist. Ct., S.D.N.Y., 98 Civ. 550, Cedarbaum, J., 2000). He is currently incarcerated at the Elmira Correctional Facility in Chemung County and filed an application to participate in the family reunion program (hereinafter FRP) with his wife and two stepchildren. Because he was classified as a central monitoring case, his application was subject to special review (see 7 NYCRR 220.2 [c][1][i] ). Following such review, his application was denied and the denial was upheld by respondent on administrative appeal. Respondent based the denial upon the seriousness of petitioner's prior crimes and his extensive prison disciplinary record, together with his lack of commitment to his marriage. Petitioner commenced this CPLR article 78 proceeding challenging respondent's determination and, following joinder of issue, Supreme Court dismissed the petition. Petitioner now appeals.
Initially, it is well settled that participation in the FRP is a privilege and not a right (see Matter of Doe v. Coughlin, 71 N.Y.2d 48, 55, 523 N.Y.S.2d 782, 518 N.E.2d 536 [1987], cert. denied 488 U.S. 879, 109 S.Ct. 196, 102 L.Ed.2d 166 [1988] ; Matter of Rodriguez v. Annucci, 129 A.D.3d 1417, 1418, 12 N.Y.S.3d 371 [2015] ). The determination of whether an inmate may participate is "heavily discretionary" and will be upheld if it has a rational basis (Matter of Doe v. Coughlin, 71 N.Y.2d at 56, 523 N.Y.S.2d 782, 518 N.E.2d 536 ; see Matter of Philips v. Commissioner of Correctional Servs., 65 A.D.3d 1407, 1408, 885 N.Y.S.2d 138 [2009] ).
Here, respondent appropriately considered the brutal nature of petitioner's crimes, including the crimes of conviction as well as his prior crimes, which involved gun-point robberies of other victims (see 7 NYCRR 220.2 [c][1]; see also Matter of Philips v. Commissioner of Correctional Servs., 65 A.D.3d at 1408, 885 N.Y.S.2d 138 ). Respondent also properly considered petitioner's numerous prison disciplinary violations, many of which involved violent and disruptive conduct (see 7 NYCRR 220.2 [c][1]; see also Matter of
Philips v. Commissioner of Correctional Servs., 65 A.D.3d at 1408, 885 N.Y.S.2d 138 ). These factors provided a rational basis for the denial of petitioner's request to participate in the FRP. Although respondent also relied upon petitioner's lack of commitment to his marriage and concedes that the factual basis for this consideration was not sufficiently explained, remittal is not necessary as we do not invoke different grounds for upholding the determination but adhere to the grounds relied upon for which there is factual support (compare Matter of Bierenbaum v. Goord, 13 A.D.3d 945, 946, 787 N.Y.S.2d 438 [2004] ). We have considered petitioner's procedural and constitutional claims and find them to be unavailing.
Even absent the disciplinary determination that was administratively reversed and expunged, petitioner's disciplinary history is extensive.
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ORDERED that the judgment is affirmed, without costs.
PETERS, P.J., GARRY and ROSE, JJ., concur.