| Matter of Given v Goord |
| 2008 NY Slip Op 04800 [51 AD3d 1343] |
| May 29, 2008 |
| Appellate Division, Third Department |
| In the Matter of Theodore F. Given, Jr., Appellant, v Glenn S.Goord, as Commissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (David M. Finkelstein of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered November 29, 2006 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent withholding petitioner's good time credit.
Petitioner is currently serving a prison sentence of 12½ to 25 years upon his convictionof rape in the first degree and is required to participate in the sex offender counseling programwhile incarcerated. In 2003, petitioner was removed from the program for poor performance,participation or progress. In September 2005, petitioner reenrolled in the program but was soonplaced on probation status based on, among other things, his lack of honesty, insight andempathy. The following month, his probation status was continued due to the need for furtherassessment. Thereafter, the Time Allowance Committee recommended withholding petitioner'sgood time credit and that recommendation was confirmed by the facility superintendent and,ultimately, by respondent. Petitioner then commenced this CPLR article 78 proceeding. SupremeCourt dismissed the petition and petitioner appeals.
We affirm. Respondent's discretionary determination to grant or withhold good time credit isbased on a review of an inmate's entire institutional record and is not subject to judicial review aslong as it is made in accordance with the law (see Correction Law § 803 [4];Matter of Bolster v Goord, 300 AD2d 711, 712 [2002]). Here, petitioner's failure tosuccessfully [*2]participate in the sex offender counselingprogram provides a rational basis for respondent's decision as it demonstrates petitioner's refusalto address the very conduct that resulted in his incarceration (see Matter of Martin v Goord, 45 AD3d 992, 994 [2007],appeal dismissed 10 NY3d 756 [2008]; Matter of Jones v Coombe, 269 AD2d632 [2000], lv denied 95 NY2d 755 [2000]).
Petitioner's remaining contentions, including his due process claims, have been reviewed andfound to be without merit.
Mercure, J.P., Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that thejudgment is affirmed, without costs.