| Matter of Brown v Napoli |
| 2009 NY Slip Op 03805 [62 AD3d 1106] |
| May 14, 2009 |
| Appellate Division, Third Department |
| In the Matter of Geneo Brown, Appellant, v David Napoli, asSuperintendent of Southport Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (O'Shea, J.), entered July 22, 2008 inChemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Commissioner of Correctional Services withholdingpetitioner's good time allowance.
Following his 1997 conviction of the crime of manslaughter in the second degree, petitionerwas sentenced to a prison term of 5 to 15 years to be served consecutively to a term of 1 to 3years which he had received for a conviction for criminal possession of a weapon in the thirddegree. In January 2008, the Correctional facility's Time Allowance Committee recommendedthat petitioner's good time allowance, six years, be withheld based upon his overall poordisciplinary record, which included repeated violent offenses, and his failure to completerequired aggression counseling and transitional services programs. This recommendation wasadministratively affirmed. Petitioner subsequently initiated this CPLR article 78 proceeding.Supreme Court dismissed the petition and petitioner now appeals.
We affirm. We are satisfied that the discretionary determination to withhold petitioner's goodtime credit was based on a review of his entire institutional record and was made in accordancewith the law and, therefore, is not subject to judicial review (see Matter of Reed v Fischer, 54 AD3d 1088, 1088 [2008]; Matter of Given v Goord, 51 AD3d1343, 1343 [2008]; Matter ofEdwards v Goord, 26 AD3d 659, 660 [2006], lv denied 7 NY3d 710 [2006]).The [*2]record demonstrates that, between March 1998 and April2008, petitioner was cited 39 times for misbehavior, including multiple instances of violentconduct, fighting and making threats. In addition, petitioner was precluded from completingrequired programs due to the excessive disciplinary sanctions he received as a result of theseinfractions. Therefore, we find a rational basis for the determination (see Matter of Edwardsv Goord, 26 AD3d at 660; Matterof McPherson v Goord, 17 AD3d 750, 751 [2005], lv denied 5 NY3d 709[2005]). To the extent that petitioner argues that he was denied adequate employee assistance,we note that, even had he demonstrated the requisite inadequacy, he failed to show the necessaryprejudice in light of the evidence of his copious disciplinary infractions and failure to completethe necessary programs (see Matter ofRussell v Selsky, 50 AD3d 1412, 1413 [2008]; Matter of Miller v Goord, 1 AD3d 647, 648-649 [2003]).
Mercure, J.P., Rose, Kane, Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.