Lee v. Recore

Appeal from a judgment of the Supreme Court (Hughes, J.), entered February 3, 1997 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 a temporary release program.

Petitioner, a prison inmate, was denied permission to participate in a temporary release program on several grounds including findings that he presented a risk to the community due to his inherently violent recidivistic criminal history, that his custodial adjustment during a prior incarceration was poor and that he had been the subject of a recent disciplinary report charging him with fighting. Supreme Court dismissed petitioner’s subsequent application for CPLR article 78 review. We affirm. Because an inmate’s participation in a temporary release program is a privilege (see, Correction Law § 855 [9]), our review is confined to whether the denial of this privilege “violated any positive statutory requirement or denied a constitutional right of the inmate and whether [it] is affected by irrationality bordering on impropriety” (Matter of Gonzalez v Wilson, 106 AD2d 386, 386-387). Petitioner has failed to establish that the denial was affected by a statutory or constitutional violation and we find that the factors relied upon by respondent in denying the application provided ample support for the determination. Petitioner’s remaining claims have been examined and are found to be without merit.

Cardona, P. J., Mikoll, Crew III, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.