| Matter of Martin v Goord |
| 2007 NY Slip Op 08321 [45 AD3d 992] |
| November 8, 2007 |
| Appellate Division, Third Department |
| In the Matter of Kevin Martin, Appellant, v Glenn S. Goord, asCommissioner of Correctional Services, Respondent. (And Another RelatedProceeding.) |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Owen Demuth of counsel), forrespondent.
Kane, J. Appeals (1) from a judgment of the Supreme Court (McNamara, J.), entered January24, 2006 in Albany County, which dismissed petitioner's application, in proceeding No. 1pursuant to CPLR article 78, to review a determination of the Department of CorrectionalServices denying petitioner's inmate grievance, and (2) from a judgment of said court (Lamont,J.), entered August 18, 2006 in Albany County, which dismissed petitioner's application, inproceeding No. 2 pursuant to CPLR article 78, to review a determination of the Department ofCorrectional Services withholding petitioner's good time credit.
In 1986, petitioner was convicted of several crimes, including rape in the first degree, andbegan serving a 10 to 20-year prison sentence (People v Martin, 141 AD2d 856 [1988]).Soon after being conditionally released, petitioner was arrested and thereafter convicted of [*2]attempted criminal possession of a controlled substance in the fifthdegree (People v Martin, 295 AD2d 370 [2002], lv denied 98 NY2d 769 [2002]).This conviction resulted in a 1½ to 3-year prison sentence, which ran consecutive to theremainder of his sentence on the rape conviction (see Penal Law § 70.25 [2-a]; Matter of El-Aziz v Goord, 27 AD3d861, 862 [2006], lv denied 7 NY3d 704 [2006]). After his return to prison, theDepartment of Correctional Services (hereinafter DOCS) informed petitioner that he wasrequired to complete a sex offender counseling program (hereinafter SOCP) before he would beconditionally released. Petitioner filed a grievance challenging that requirement. When hisgrievance was unsuccessful, he commenced a CPLR article 78 proceeding. Supreme Court(McNamara, J.) dismissed his petition.
Petitioner began participating in the SOCP, but was discharged from the program withoutcompleting it. This removal from the program caused petitioner to lose good time credit, leadinghim to commence a second CPLR article 78 proceeding. Supreme Court (Lamont, J.) dismissedthat petition as well. Petitioner appeals from both judgments.
DOCS properly recommended that petitioner participate in the SOCP. Because petitionerwas serving the unexpired portion of the sentence on his rape conviction, he was serving asentence for a sexual offense, thereby qualifying him for the SOCP. Although petitionerparticipated in a sex offender course during his prior incarceration, DOCS rationally held that theearlier course was not as comprehensive as, and did not satisfy the counseling and treatmentobjectives of, the standardized programs now in existence (see Matter of Tucker v Nuttall, 31 AD3d 1078, 1078 [2006]).DOCS's standardization of programs and the resulting policy change did not violate the ex postfacto clause of either the State or Federal Constitution (see Matter of Scarola v Goord,266 AD2d 598, 599 [1999], lv denied 94 NY2d 760 [2000]; Matter of V & A Towingv City of New York, 197 AD2d 386, 387 [1993]).
DOCS did not act arbitrarily or capriciously in terminating petitioner's participation in theSOCP or withholding good time credit. The termination was based upon poor evaluations linkedto petitioner's negative attitude and his failure or refusal to take full responsibility for hisoffending behavior (see Matter ofWinkler v New York State Dept. of Correctional Servs., 34 AD3d 993, 994 [2006]).Termination from a recommended or required sex offender treatment program provides a rationalbasis for withholding good time credit, as it represents a refusal to address the behavior thatresulted in incarceration (see Matter ofEdwards v Goord, 26 AD3d 659, 660 [2006], lv denied 7 NY3d 710 [2006];Matter of Majeed v Goord, 279 AD2d 832, 833 [2001], lv denied 96 NY2d 713[2001]; 7 NYCRR 260.3 [b]).
Petitioner's contention that DOCS could not withhold good time credit after issuing himearned eligibility certificates is inapposite as such certificates are applicable to parole, not togood time credit (compare Correction Law § 803 with Correction Law§ 805).
Cardona, P.J., Mercure, Crew III and Carpinello, JJ., concur. Ordered that the judgments areaffirmed, without costs.