| Matter of Reed v Fischer |
| 2008 NY Slip Op 06772 [54 AD3d 1088] |
| September 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Terry Reed, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered February 4, 2008 inClinton 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 was convicted in 1997 of attempted murder in the second degree and wassentenced to a term of 6 to 18 years in prison. In May 2007, he was directed to appear at ahearing before the Time Allowance Committee (hereinafter TAC) to determine whether anyportion of his good time behavior allowance should be withheld after he exhibited violentbehavior previously addressed in an aggression therapy program and was removed from anacademic program for disciplinary reasons. Following the hearing, TAC recommended that allsix years of petitioner's good time be withheld and that, following his completion of anotheraggression therapy program and participation in either an academic or vocational program, hecould reapply for reconsideration. The recommendation was subsequently affirmed byrespondent. Petitioner then commenced this CPLR article 78 proceeding challenging thedetermination and, following joinder of issue, Supreme Court dismissed the petition. This appealensued.
Initially, "[i]t is well established that '[g]ood behavior allowances are in the nature of aprivilege . . . and no inmate has the right to demand or to require that any goodbehavior allowance be granted to him [or her]' " (Matter of Edwards v Goord, 26 AD3d 659, 660 [2006], lvdenied 7 NY3d 710 [2006], quoting 7 NYCRR 260.2; see Matter of Benjamin v New York State [*2]Dept. of Correctional Servs., 19 AD3d 832, 833 [2005]).Whether to withhold a good time behavior allowance is a discretionary determination and, aslong as it is made in accordance with law and is based upon a review of an inmate's entireinstitutional record, it is not subject to judicial review (see Matter of Given v Goord, 51 AD3d 1343, 1343 [2008]; seealso Correction Law § 803 [4]). The record here discloses that TAC consideredpetitioner's complete institutional record, including his numerous prior disciplinary infractions aswell as his program accomplishments, and petitioner agreed that the key facts were accurate. Ofparticular significance were petitioner's recent disciplinary infractions incurred as the result of afight in which he exhibited behavior inconsistent with a prior aggression therapy program and hisremoval from an academic program for disciplinary reasons. Inasmuch as a good time allowancemay be withheld for "bad behavior, violation of institutional rules or failure to perform properlyin the duties or program assigned" (Correction Law § 803 [1] [a]), the withholding ofpetitioner's good time credit was entirely rational under the circumstances presented here (see e.g. Matter of Worthy v Selsky, 6AD3d 840 [2004]; Matter of Rivera v Goord, 297 AD2d 844 [2002], lvdenied 99 NY2d 503 [2002]). Consequently, Supreme Court properly dismissed the petition.
Cardona, P.J., Spain, Lahtinen, Kane and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.