Nieves v. Recore

206 A.D.2d 778, 615 N.Y.S.2d 1022, 1994 N.Y. App. Div. LEXIS 7991

Opinion

Casey, J.

Appeal from a judgment of the Supreme Court (Viscardi, J.), entered October 25, 1993 in Essex County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, seeking to compel restoration of petitioner to the Department of Correctional Services’ temporary release program.

Petitioner, an inmate in the State correctional system, was a participant in the temporary release program at Lincoln Correctional Facility in New York City in March 1993 when he failed to return to the facility at the conclusion of a work release furlough. He contends that his removal from the program when he was apprehended several months later was in violation of departmental regulations and the Due Process Clause. We conclude that petitioner has not demonstrated a clear entitlement to restoration to the temporary release program and, therefore, his petition seeking that relief was properly dismissed.

It is undisputed that petitioner received at least 24 hours’ advanced written notice of the charges, a hearing at which he was given the opportunity to respond, and a written statement of the fact finder concerning the evidence relied upon and the action takén. Accordingly, there was no due process violation (see, People ex rel. Cunningham v Metz, 61 AD2d 590, 592). The delay between petitioner’s return to custody and the hearing did not result in any prejudice to petitioner and does not, in our view, require petitioner’s restoration to the temporary release program.

Cardona, P. J., Mikoll, Crew III and White, JJ., concur. Ordered that the judgment is affirmed, without costs.