| Matter of Frejomil v Fischer |
| 2009 NY Slip Op 09330 [68 AD3d 1371] |
| December 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Richard Frejomil, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (McNamara, J.), entered October 8,2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Central Office Review Committee denyingpetitioner's grievance.
Petitioner, an inmate at Great Meadow Correction Facility in Washington County, filed agrievance pursuant to the Inmate Grievance Program (see 7 NYCRR part 701) seekingclarification of a certain provision of Department of Correctional Services Directive No. 4911.Specifically, petitioner's grievance challenged the application of Directive No. 4911, AttachmentD (A) which, as relevant herein, states that "[i]tems, except for fresh fruits and vegetables, mustbe received commercially packaged in airtight hermetically sealed containers impervious toexternal influence (e.g., sealed cans, heat sealed plastic bags, vacuum sealed pouches, vacuumsealed plastic jars, glue sealed paper or cardboard boxes with the inside product beinghermetically sealed, etc.)." The grievance was ultimately denied by the Central Office ReviewCommittee (hereinafter CORC), which found that "all food items packaged in glue sealed papermust have the inside product hermetically sealed." Petitioner thereafter commenced thisproceeding pursuant to CPLR article 78 and Supreme Court dismissed the petition. Petitioner[*2]appeals and we now modify.
To prevail, petitioner must carry the heavy burden of demonstrating that the determinationby CORC was irrational or arbitrary and capricious (see Matter of Keesh v Smith, 59 AD3d 798, 798 [2009]; Matterof Clark v Fischer, 58 AD3d 932, 932 [2009]). Petitioner has met that burden. The challengeto the interpretation of the directive involves (1) whether products contained in "glue sealedpaper" containers require that the inside product be further hermetically sealed and (2) whetherproducts contained in other types of containers that are already hermetically sealed, i.e., "vacuumsealed plastic jars," require the inside product to be further hermetically sealed.[FN*]
The clear intention of the directive is to ensure that any package received by an inmate hassome type of hermetic seal put in place by the manufacturer to insure that the product has notbeen tampered with prior to its introduction into the facility. Thus, with regard to productscontained in glue sealed paper containers—such as candy bars, cookies and potatochips—the determination by CORC is rational, inasmuch as this type of packaging doesnot render the inside products "impervious to external influence" (Department of CorrectionalServices Directive No. 4911, Attachment D[A]). We further find, however, that to require aproduct packaged in a vacuum sealed plastic jar or similar container, that is hermetically sealedusing glued paper or foil, to have its inside product also hermetically sealed would be redundantand, therefore, represents an irrational interpretation of the directive. Consequently, CORC'sdenial of that part of petitioner's grievance was arbitrary and capricious (see Matter ofRaqiyb v Eagen, 277 AD2d 528, 528-529 [2000]).
Cardona, P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as dismissed that part of thepetition as challenged the interpretation of Department of Correctional Services Directive No.4911 holding that vacuum sealed plastic jars and similar containers that are hermetically sealedmust also have the inside product hermetically sealed or they are in violation of said directive;grant the petition to said extent and matter remitted to the [*3]Central Office Review Committee for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.
Footnote *: While respondent characterizespetitioner's argument as only challenging the directive as it has been applied to "glue sealedpaper" containers, a fair reading of his papers indicates a more expansive challenge. Forinstance, petitioner lists in his grievance, as an example of items being confiscated under thedirective, "2 vacuum sealed, plastic jars of Taster's Choice coffees, glue sealed foil" and,upon administrative appeal, submitted pictures of the specific items he contends were beingimproperly confiscated. Additionally, an internal document prepared by respondent summarizedpetitioner's grievance as stating that "[v]acuum sealed plastic jars (e.g. coffee/creamers, etc.)among other items with a glued foil seal are being denied based on staff's interpretation of 4911D-(A) General Restrictions, specifically the portion '. . . glued seal paper orcardboard boxes (with the inside product hermetically sealed).' "