| Matter of Rivera v Fischer |
| 2009 NY Slip Op 08102 [67 AD3d 1140] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of Carlos Rivera, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
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Appeal from a judgment of the Supreme Court (Platkin, J.), entered October 9, 2008 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review two determinations of the Central Office Review Committee denying hisgrievances.
While a prisoner at Marcy Correctional Facility in Oneida County, petitioner was aparticipant in the Alcohol and Substance Abuse Treatment (hereinafter ASAT) program. Afterreceiving three behavior contracts in July 2007, petitioner went before the ASAT Plan ReviewCommittee and was placed on probation. In August 2007, petitioner received two more behaviorcontracts and, as a consequence, was removed from the program. After removal, petitioner filedmultiple grievances, which were ultimately denied by the Central Office Review Committee.Petitioner thereafter commenced this CPLR article 78 proceeding and Supreme Court dismissedthe petition. Petitioner appeals and we now affirm.
Our scope of review here is limited to whether the denial of petitioner's grievances wasirrational, arbitrary and capricious or affected by an error of law (see Matter of Wooley v New York StateDept. of Correctional Servs., 61 AD3d 1189, 1190 [2009]; Matter of Clark vFischer, 58 AD3d 932, 932 [2009]). Petitioner first contends that he was removed from theASAT program in retaliation for having filed grievances against program staff. However, therecord clearly demonstrates that petitioner was removed from the program for his continuingfailure to [*2]comply with its standards, even after he was placedon probation. Likewise, petitioner's contention that he was improperly placed at the bottom ofthe waiting list to reenter the ASAT program is without merit, inasmuch as the programguidelines mandate that when an inmate has received two or more unsatisfactory discharges, ashas petitioner, application for readmission can be made after 90 days and the inmate's name is tobe placed at the bottom of the list. Finally, with regard to petitioner's challenge to thedetermination regarding his grievance that he was harassed by facility staff, said challenge ismoot since he has since been transferred from the facility where the grievance arose (see Matter of Bermudez v Fischer, 55AD3d 1099, 1100 [2008], lv denied 11 NY3d 714 [2009]; Matter of Lou v Brown, 38 AD3d1138, 1138-1139 [2007]).
Petitioner's remaining contentions have been examined and found to be lacking in merit.
Peters, J.P., Spain, Kane, Malone Jr. and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.