| Matter of Ryan v Selsky |
| 2008 NY Slip Op 01880 [49 AD3d 926] |
| March 6, 2008 |
| Appellate Division, Third Department |
| In the Matter of Sean Ryan, Petitioner, v Donald Selsky, as Directorof Special Housing and Inmate Disciplinary Programs, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Mercure, J.P. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of respondent whichdirected that petitioner be placed into administrative segregation.
Petitioner has been imprisoned since 1978. During his imprisonment, he was convicted ofmurder and arson after setting his codefendant's cell on fire, two counts of escape involvingseparate facilities, and assault on staff. Petitioner has been confined to a special housing unit andsegregated from the general prison population for more than a decade. In April 2006, GeorgeSeyfert, Deputy Inspector General of the Department of Correctional Services, recommendedadministrative segregation of petitioner. Following a hearing, administrative segregation wasdetermined to be warranted on the ground that petitioner poses a danger to the staff, inmates andthe correctional facility in which he is housed. After the determination was upheld by respondenton administrative appeal, this CPLR article 78 proceeding ensued.
We confirm. A determination confining an inmate to administrative segregation will beupheld if supported by substantial evidence "that the inmate['s] presence in [the] generalpopulation would pose a threat to the safety and security of the facility" (7 NYCRR 301.4 [b];[*2]accord Matter of O'Keefe v Coombe, 233 AD2d 640,640 [1996]). In that regard, we note that " '[i]n the volatile atmosphere of a prison, an inmateeasily may constitute an unacceptable threat to the safety of other prisoners and guards even if hehimself has committed no [recent] misconduct; rumor, reputation, and even more imponderablefactors may suffice to spark potentially disastrous incidents' " (Matter of Rifkin v Goord,273 AD2d 878, 879 [2000], quoting Hewitt v Helms, 459 US 460, 474 [1983]; accordMatter of Francella v Selsky, 236 AD2d 749, 750 [1997]). Here, petitioner's criminalconvictions during his imprisonment, history of escape, and testimony minimizing the eventssurrounding his convictions, as well as the written recommendation and testimony of the deputyinspector general, provide substantial evidence to support respondent's determination (see Matter of Obregon v Goord, 36AD3d 1034, 1035 [2007]; Matter ofBlake v Selsky, 10 AD3d 774, 775 [2004]; Matter of Francella v Selsky, 236AD2d at 750-751; Matter of O'Keefe v Coombe, 233 AD2d at 640). Contrary to hisargument, petitioner's good behavior in the special housing unit is not determinative; " '[a] denialof the opportunity to commit a crime cannot be . . . taken as probative evidence ofrehabilitation' " (Matter of Blake v Selsky, 10 AD3d at 776 [citation omitted]).
We reject petitioner's argument that the administrative decision to segregate him from thegeneral prison population constitutes either criminal punishment triggering double jeopardyprotection or cruel and unusual punishment (see Matter of De Grijze v Selsky, 305 AD2d761, 762 [2003], appeal dismissed 100 NY2d 613 [2003]; Matter of Rifkin vGoord, 273 AD2d at 880). Furthermore, there is no indication that the Hearing Officer'soff-the-record conversation with a social worker about petitioner's mental health statusinfluenced the determination (see Matter of Collucci v Goord, 305 AD2d 825, 825[2003]).
Petitioner's remaining contentions have been considered and found to be lacking in merit.
Peters, Carpinello and Rose, JJ., concur. Adjudged that the determination is confirmed,without costs, and petition dismissed.