Matter of Gordon v. Morris , 40 N.Y.S.3d 799 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 17, 2016 520858
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In the Matter of FERNANDO
GORDON,
Appellant,
v MEMORANDUM AND ORDER
CHERYL MORRIS, as Director of
Ministerial, Family and
Volunteer Services for the
Department of Corrections
and Community Supervision,
Respondent.
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Calendar Date: October 20, 2016
Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.
__________
Fernando Gordon, Wallkill, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen
Treasure of counsel), for respondent.
__________
Lynch, J.
Appeal from a judgment of the Supreme Court (McDonough,
J.), entered March 2, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent denying
petitioner's request to participate in the family reunion
program.
In 1994, petitioner and two accomplices were involved in
the robbery of a hair salon during which they drew their weapons
and terrorized patrons of the salon. One patron, who was a
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police officer, engaged in a gun battle with the intruders and
petitioner attempted unsuccessfully to shoot the officer when his
gun jammed before ultimately fleeing the scene. As a result of
this incident, petitioner was convicted of a number of crimes,
including attempted murder in the first degree, and is currently
serving a lengthy term of incarceration, the maximum of which is
life in prison.
In 2007 and 2008, during his incarceration, petitioner was
granted permission to participate in the family reunion program
with his then-wife and her two children. In 2009, petitioner and
his wife divorced. In January 24, 2013, petitioner married his
second wife and, exactly six months later, he submitted an
application to participate in the family reunion program with
her. Because petitioner was designated a central monitoring
case, his application was forwarded to the Central Office for
special review (see 7 NYCRR 220.2 [c] [1] [i]). The Central
Office denied petitioner's application and the denial was upheld
by respondent on administrative appeal. Petitioner commenced
this CPLR article 78 proceeding challenging the denial and,
following service of respondent's answer, Supreme Court dismissed
the petition. This appeal by petitioner ensued.
We affirm. Initially, it is well settled that an inmate's
participation in a family reunion program is a privilege, not a
right (see Matter of Scott v Richey, 141 AD3d 1058, 1058 [2016];
Matter of Mays v Morris, 133 AD3d 1050, 1051 [2015]). The
decision of whether to allow an inmate to participate is "heavily
discretionary" and will not be disturbed as long as it has a
rational basis (Matter of Doe v Coughlin, 71 NY2d 48, 56 [1987],
cert denied 488 US 879 [1988]; see Matter of Rodriguez v Annucci,
129 AD3d 1417, 1418 [2015]). Notably, "[p]rior participation in
the program does not guarantee that a future application will be
approved" (Matter of Garcia v Morris, 140 AD3d 1441, 1441 [2016],
lv denied ___ NY3d ___ [Oct. 27, 2016]).
In this case, the violent nature of petitioner's crimes was
a pertinent factor for respondent to consider in denying his
application (see e.g. Matter of Garcia v Morris, 140 AD3d at
1442; Matter of Mays v Morris, 133 AD3d at 1051; Matter of
Rodriguez v Annucci, 129 AD3d at 1418). Petitioner's recent
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marriage was also a relevant consideration as it did not further
the program goal of preserving, enhancing and strengthening
family ties that have been disrupted due to incarceration (see
Dept of Corr & Community Supervision Directive No. 4500 § I;
Matter of Garcia v Morris, 140 AD3d at 1442; Matter of Campbell v
Morris, 139 AD3d 1278, 1279 [2016]). In view of the foregoing,
we find that the denial of petitioner's application had a
rational basis. We have considered petitioner's remaining
contentions and find them to be lacking in merit.
McCarthy, J.P., Devine, Mulvey and Aarons, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court