| Matter of Torres v Dubray |
| 2009 NY Slip Op 05898 [64 AD3d 1027] |
| July 16, 2009 |
| Appellate Division, Third Department |
| In the Matter of Alex Torres, Appellant, v Keith Dubray, asDirector of Special Housing and Inmate Disciplinary Program,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Egan, J.), entered September 29, 2008 inAlbany 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.
Petitioner was convicted of robbery in the first degree, tampering with a witness in the thirddegree and manslaughter in the second degree and was sentenced to a prison term of 11 to 22years, which he began serving in 1994. He was disciplined for fighting in November 2007 anddirected to appear at a hearing before the Time Allowance Committee (hereinafter TAC) onemonth later to determine whether any portion of his good time behavior allowance should bewithheld (see 7 NYCRR 261.3). Based upon petitioner's poor disciplinary history andfailure to participate in a mandatory educational program, TAC recommended after the hearingthat all 88 months of petitioner's potential good time be withheld. That recommendation wassubsequently affirmed by the Commissioner of Correctional Services, prompting petitioner tocommence this CPLR article 78 proceeding challenging the determination. Following joinder ofissue, Supreme Court dismissed the petition and this appeal ensued.
We affirm. "Whether to withhold a good time behavior allowance is a discretionarydetermination and, as long as it is made in accordance with law and is based upon a review of an[*2]inmate's entire institutional record, it is not subject to judicialreview" (Matter of Reed v Fischer,54 AD3d 1088, 1088 [2008] [citations omitted]; see 7 NYCRR 261.3 [b], [c]). Here,petitioner acknowledges that TAC considered his complete institutional record prior torecommending that his good time allowance be withheld. Moreover, a review of that recordreveals 23 disciplinary infractions, including a violent episode just one month before the TAChearing. It likewise reflects petitioner's refusal to participate in a mandatory education programdespite an awareness that such refusal would have repercussions pertinent to any potentialgood-time credit. Hence, inasmuch as a good time allowance may be withheld "for bad behavior,violation of institutional rules or failure to perform properly in the duties or program assigned"(Correction Law § 803 [1] [a]), the decision to withhold petitioner's good-time credit wasentirely rational (see Matter of Brown vNapoli, 62 AD3d 1106, 1107 [2009]). Accordingly, Supreme Court properly dismissedthe petition.
Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.