Harris v. Granger

30 A.D.3d 840, 818 N.Y.S.2d 634

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 2006
• Status: Published

Opinion

Lahtinen, J.

Appeal from a judgment of the Supreme Court (Benza, J.), entered October 29, 2004 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner is currently serving a prison sentence of 20 years to life in connection with his plea of guilty to the crimes of murder and attempted murder. An inmate counselor advised petitioner that he was required to participate in a sex offender treatment program based upon the sexual misconduct underlying his murder conviction. Respondents confirmed petitioner’s placement in sex offender treatment. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78 seeking review of respondents’ determination. Supreme Court subsequently dismissed petitioner’s application finding that he failed to comply with the service provisions set forth in the order to show cause and, in any event, has not as yet suffered an injury and the recommendation to complete a sex offender program was not irrational.

We affirm. Petitioner’s failure to address the issue of improper service of the order to show cause must be deemed an abandonment of that issue (see Matter of Braswell v New York City Tr. Auth., 306 AD2d 709, 711 [2003], lv denied 100 NY2d 515 [2003]), requiring an affirmance of Supreme Court’s judgment (see Matter of Robinson v Goord, 21 AD3d 1150, 1151 [2005]). Nevertheless, after review of the record we agree with Supreme Court that petitioner’s application was premature (see Matter of Rushin v Commissioner of N.Y. State Dept. of Correctional Servs., 235 AD2d 891, 891-892 [1997]) and that the recommendation that petitioner participate in a sex offender program was rational (see Matter of Bolster v Goord, 300 AD2d 711, 713 [2002]).

Mercure, J.P, Crew III, Peters and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.