Dewitt v. Goord

20 A.D.3d 930, 797 N.Y.S.2d 342, 2005 N.Y. App. Div. LEXIS 7383

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 2005
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered March 19, 2004 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Contrary to the contention of petitioner, Supreme Court properly dismissed his CPLR article 78 petition seeking to annul determinations denying his applications for participation in a temporary release program. Pursuant to Correction Law § 855 (9), an inmate’s participation in a temporary release program is a privilege, not a right (see Matter of Pena v Roberts, 15 AD3d 707, 708 [2005]; Matter of Caban v New York State Dept. of Correctional Servs., 308 AD2d 661, 662 [2003]; Matter of Wallman v Joy, 304 AD2d 996, 997 [2003]; Matter of Dixon v Recore, 271 AD2d 778 [2000]; Matter of Peana v Recore, 257 AD2d 862, 863 [1999]; Matter of Dixon v Struna, 244 AD2d 827 [1997], lv denied 91 NY2d 810 [1998]). In reviewing the determinations denying petitioner’s applications herein, the court properly concluded that the determinations did not “ ‘violate[ ] any positive statutory requirement or den[y] a constitutional right of [petitioner, nor were the determinations] . . . affected by irrationality bordering on impropriety’ ” (Peana, 257 AD2d at 863; see Caban, 308 AD2d at 662-663; Wallman, 304 AD2d at 997; Matter of Lee v Recore, 243 AD2d 796 [1997]; Matter of Gonzalez v Wilson, 106 AD2d 386 [1984]). Present— Hurlbutt, J.P., Scudder, Kehoe, Gorski and Fine, JJ.