Opinion
No. 4798–15.
02-24-2016
In the Matter of the Application of Jacqueline YORRO, 14G0572, Petitioner, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Priscilla LEDBETTER, Director of Temporary Release Programs, Respondent.
Jacqueline Yorro, 14G0572, Petitioner, pro se. Hon. Eric T. Schneiderman, Attorney General of New York State, (Denise P. Buckley, Esq. Assistant Attorney General, Of Counsel), Albany, for Respondent.
Jacqueline Yorro, 14G0572, Petitioner, pro se.
Hon. Eric T. Schneiderman, Attorney General of New York State, (Denise P. Buckley, Esq. Assistant Attorney General, Of Counsel), Albany, for Respondent.
LISA M. FISHER, J.
Petitioner, an inmate in the care and custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), commenced this CPLR Article 78 proceeding to challenge Respondent's determination denying her application for temporary work release and the subsequent appeal which affirmed such decision on August 21, 2015. Petitioner alleges that she is being judged by her criminal history which she has already served her time for, rather than that statutory and regulatory requirements Respondent must consider. She claims to have improved during her incarceration and obliged by the terms of parole supervision and her parole officer.
Respondent opposes the application, arguing that temporary work release is a privilege and mere eligibility does not entitle Petitioner to work release. Given Petitioner's instant offenses, lengthy criminal history, and her risk to the community, Respondent claims that the determination denying Petitioner's work release application was reasonably and cannot be said to be arbitrary, capricious, or an abuse of discretion. Respondent also notes that Petitioner's instant offenses were committed while on parole supervision.
“It is well settled that participation in a temporary release program is a privilege, not a right.” (Matter of Peck v. Maczek, 38 A.D.3d 948, 948, 830 N.Y.S.2d 846 [3d Dept 2007], citing Correction Law § 855[9] ; see Matter of Abascal v. Maczek, 19 A.D.3d 913, 914, 796 N.Y.S.2d 757 [3d Dept 2005], lv. denied 5 N.Y.3d 713 [2005] ; see also Matter of Szucs v. Recore, 209 A.D.2d 803, 803, 618 N.Y.S.2d 473 [3d Dept 1994] [“Because temporary release is a discretionary program and a privilege, petitioner had no due process entitlement to continued participation in the program.”].) Therefore, a court's review of a determination denying an application to participate in such program is limited to the consideration of 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 Abascal, 19 A.D.3d at 913, 796 N.Y.S.2d 757, quoting Matter of Gonzalez v. Wilson, 106 A.D.2d 386, 386–87, 482 N.Y.S.2d 302 [2d Dept 1984] ; accord Matter of Patterson v. Goord, 1 A.D.3d 845, 767 N.Y.S.2d 301 [3d Dept 2003].)
There are no such violations here. The record reveals that basis for the denial of Petitioner's application was the nature of her crime, her extensive recidivist history, parole supervision history, that the instant offense is a parole violation, that she failed to benefit from prior work releases, public safety and community impact, and a noted custodial adjustment, all of which were appropriate factors to consider in determining whether Petitioner was an acceptable candidate for temporary release. (See 7 NYCRR § 1900.4 ; see also Matter of Abascal v. Roach, 22 A.D.3d 995, 995–96, 802 N.Y.S.2d 569 [3d Dept 2005] [considering instant offense, recidivist history, and custodial behavior]; Matter of Abascal, 19 AD3d at 948 [considering disciplinary record, recidivistic criminal history, prior parole revocation, and instant offense]; Matter of Peck, 38 A.D.3d at 948, 830 N.Y.S.2d 846 [considering instant offense and repeated criminal history]; Matter of Mottshaw v. Joy, 307 A.D.2d 492, 493, 761 N.Y.S.2d 882 [3d Dept 2003] [considering instant offense, seriousness of instant offense, and lack of rehabilitative programs]; Matter of Martin v. Goord, 305 A.D.2d 899, 900, 758 N.Y.S.2d 862 [3d Dept 2003] [considering custodial adjustment, criminal history, parole history, drug use, and public safety and community impact], lv. denied 100 N.Y.2d 510 [2003] ; Matter of Patterson, 1 A.D.3d at 845, 767 N.Y.S.2d 301 [considering criminal history, positive custodial adjustment, and recidivism].)
Inasmuch as those were appropriate factors to consider, it cannot be said that the determination was irrational or violated Petitioner's statutory or constitutional rights, and therefore it will not be disturbed. (Matter of Abascal, 19 A.D.3d at 913, 796 N.Y.S.2d 757 ; Matter of Gonzalez, 106 A.D.2d at 386–87, 482 N.Y.S.2d 302 ; Matter of Patterson, 1 A.D.3d at 845, 767 N.Y.S.2d 301.) Respondent's determination was not arbitrary, capricious, or an abuse of discretion.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED and ADJUDGED, that the Petition is DISMISSED and all relief requested therein is denied in its entirety.
This constitutes the Decision/Order/Judgment of the Court. Please note that a copy of this Decision/Order/Judgment along with the original papers are being filed by Chambers with the County Clerk. The original Decision/Order/Judgment is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.