| Matter of Wiggins v Joy |
| 2007 NY Slip Op 09832 [46 AD3d 1035] |
| December 13, 2007 |
| Appellate Division, Third Department |
| In the Matter of Keith Wiggins, Appellant, v Debra Joy, as Directorof Temporary Release Programs, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered October 11, 2006 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review (1) a determination of respondent Director of Temporary Release Programsdenying his application to participate in a temporary release program and (2) a determination ofthe Department of Correctional Services directing him to participate in a training program.
In July 2002, following his conviction of criminal possession of a controlled substance in thethird degree, petitioner was sentenced as a second felony offender to 4½ to 9 years inprison. In October 2005, he applied for presumptive work release so that he could participate inthe Comprehensive Alcohol and Substance Abuse Treatment program. The Temporary ReleaseCentral Office Review Committee disapproved petitioner's request based upon his prior criminalbehavior and violation of parole. On administrative appeal, respondent Director of TemporaryRelease Programs affirmed the Committee's decision. Petitioner commenced this CPLR article78 proceeding challenging this determination as well as a determination of the Department ofCorrectional Services directing him to participate in an Aggression Replacement Trainingprogram. Following joinder of issue, Supreme Court dismissed the petition and this appealensued.
Initially, petitioner contends that, in denying him temporary release, the Committee [*2]improperly took into account the fact that he had three felonyconvictions because the one that occurred more than 10 years ago for which he received a stateprison sentence should not have been considered under the pertinent regulations (see 7NYCRR 1900.4). Based upon our review of the regulations, we do not find any provision thatexplicitly precludes the Committee from considering prior crimes, regardless of when they werecommitted. The regulations provide that, in addition to the factors enumerated in thepoint-scoring system and in the interview with the inmate, "[t]he committee shall. . . take into account any factors . . . which, in their best judgment,they find significant" (7 NYCRR 1900.4 [l] [2]). Keeping in mind that participation in atemporary release program is a privilege, not a right (see Matter of Crispino v Goord, 31 AD3d 1022, 1023 [2006], lvdismissed 7 NY3d 854 [2006]; Matter of Greig v Joy, 21 AD3d 615, 616 [2005]) and, afterreviewing the record, we do not find that the determination denying petitioner temporary release" 'violated any positive statutory requirement or denied a constitutional right . . .[or] is affected by irrationality bordering on impropriety' " (Matter of Abascal v Roach, 22 AD3d 995, 995 [2005], quotingMatter of Gonzalez v Wilson, 106 AD2d 386, 386-387 [1984]). Likewise,notwithstanding the fact that petitioner's prior conviction of robbery in the third degree was nottechnically classified as a violent felony, given the nature of this crime, we are of the view thatthe Department's directive that petitioner participate in the Aggression Replacement Trainingprogram based upon his violent tendencies was neither irrational nor arbitrary and capricious (see e.g. Matter of Frazier v Miller, 35AD3d 950, 951 [2006]).
Crew III, J.P., Peters, Spain, Rose and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.