Opinion
Index No,: 53592
03-25-2021
In the Matter of the Application of KASIB SHAMSIDDEEN, DIN #10A1115, Petitioner, v. A. TITUS, ACTING SUPERINTENDENT, FIVE POINTS CORRECTIONAL FACILITY, Respondent.
Decision and Judgment
Petitioner commenced this Article 78 petition challenging the both the procedures for and the ultimate the determination of the Respondent's Time Allowance Committee (TAC) rendered on July 31, 2020. The Petitioner commenced this action by the filing of a petition on December 8, 2020. The Court has reviewed the petition of Petitioner, and the Verified Answer and Return submitted by the Assistant Attorney General, Ted O'Brien, Esq.
In an Article 78 challenge to an agency's decision the standard for review is whether the "determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" CPLR 7803[3). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). However, when the determination is supported by a rational basis, the Court "must sustain the determination" even if the Court "concludes that it would have reached a different result than the one reached by the agency" (Sylvester v Fischer, 126 AD3d 1330, 1330 [4th Dept 2015]).
Petitioner alleges that the TAC decision of July 31, 2020 was improper because he did not receive notice of the hearing pursuant to 7 NYCRR § 261.4[b], and did not receive assistance for the hearing pursuant to 7 NYCRR § 261.4[c]. Those requirements are applicable to a hearing conducted pursuant to 7 NYCRR § 261.4[a]. That hearing occurred in April 2020 And resulted in 1 year, 10 months and 27 days of good time being withheld.
The determination made by TAC on July 31, 2021 was not made after a hearing conducted pursuant to 7 NYCRR 261.4[a]. Rather, it resulted from the TAC's reconsideration of its prior determination after the Petitioner requested a rehearing, due to his having completed the ART program. Reconsideration occurs after a hearing and the determination may be changed to due to the inmate's change in circumstances, but reconsideration is not a new hearing held pursuant to 7 NYCRR 261.4[a]. Thus, Petitioner was not entitled to notice prior to TAC's reconsideration.
It is settled that any decision affecting good time allowances shall not be reviewed so long as it is made in accordance with the law (see, Correction Law § 803[4]). Here, TAC's recommendation to restore 1 year of good time to the Petitioner was baed "upon the inmate's entire institutional experience" (Matter of Staples v Goord, 263 AD2d 943, 944 [3d Dept 1999]), and was not irrational (Matter of Burke v Goord, 273 AD2d 575, 575 [3d Dept 2000]).
Therefore upon the papers submitted, this court finds that the petition is in all respects denied and dismissed without additional costs. THIS CONSTITUTES THE DECISION AND JUDGMENT OF THE COURT. Dated: March 25, 2021
/s/_________
The Honorable Daniel J. Doyle
Supreme Court Justice