Matter of Scott v. Richey , 35 N.Y.S.3d 665 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 28, 2016 521878
________________________________
In the Matter of RASHAD SCOTT,
Appellant,
v MEMORANDUM AND ORDER
THERESA A. RICHEY, as
Director of Ministerial,
Family and Volunteer
Services,
Respondent.
________________________________
Calendar Date: June 6, 2016
Before: Peters, P.J., Lahtinen, Garry, Lynch and Mulvey, JJ.
__________
Rashad Scott, Stormville, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for respondent.
__________
Appeal from a judgment of the Supreme Court (Cortese, J.),
entered October 8, 2015 in Clinton County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent denying his
request to participate in the family reunion program.
In December 2010, petitioner, an inmate, was found guilty
of violating the prison disciplinary rules that prohibit drug
possession. In 2011, petitioner's application for participation
in the family reunion program (hereinafter FRP) was denied based
upon the drug-related disciplinary determination and he was
informed that he could reapply for consideration upon his
completion of a comprehensive substance abuse program, including,
among other things, participation in 24 sessions of narcotics
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anonymous. In 2013, petitioner reapplied to participate in the
FRP with his father. Petitioner's application was denied, and,
on administrative appeal, that determination was affirmed based
upon the nature of his convictions evincing a need for alcohol
and substance abuse treatment and his December 2010 drug-related
disciplinary determination. Petitioner commenced this CPLR
article 78 proceeding challenging this determination, and,
following joinder of issue, Supreme Court dismissed the petition.
This appeal ensued.
We are unpersuaded by petitioner's contention that the
decision to deny his application for participation in the FRP is
arbitrary and capricious and not supported by a rational basis.
"Participation in the [FRP] is not a right, but a privilege, and
the decision about whether an inmate may participate is heavily
discretionary and will be upheld if it has a rational basis"
(Matter of Philips v Commissioner of Correctional Servs., 65 AD3d
1407, 1408 [2009] [internal quotation marks and citations
omitted]). Although petitioner submitted evidence to Supreme
Court that he participated in narcotics anonymous, attending over
24 sessions, it is unclear whether this information was included
with his application for FRP. Regardless, participation in the
narcotics program rendered him eligible to apply for the FRP but
"does not automatically entitle him to participate in the FRP"
(Matter of Payne v Goord, 12 AD3d 733, 734 [2004]; see Matter of
Doe v Coughlin, 71 NY2d 48, 55-56 [1987], cert denied 488 U.S. 879
[1988]). In any event, the nature of his crimes indicating a
need for substance abuse treatment and his regression with drug
possession in December 2010 provide a rational basis for the
denial of his FRP application (see Matter of Stacione v Baker, 24
AD3d 843, 843 [2005]), "as each application is subjected to a new
discretionary review" (Matter of Philips v Commissioner of
Correctional Servs., 65 AD3d at 1408 [internal quotation marks
and citation omitted]). Accordingly, the petition was properly
dismissed.
Peters, P.J., Lahtinen, Garry, Lynch and Mulvey, JJ.,
concur.
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ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court