Matter of Isidro Abascal v John Maczek

Matter of Abascal v Maczek 2005 NY Slip Op 05365 [19 AD3d 913] June 23, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 24, 2005

In the Matter of Isidro Abascal, Appellant, v John Maczek, as New York State Department of Correctional Services Temporary Release Program Reviewer, Respondent.

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Appeal from a judgment of the Supreme Court (Canfield, J.), entered August 6, 2004 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Director of Temporary Release Programs denying petitioner's request for participation in the temporary work release program.

In 1997, petitioner pleaded guilty to the crime of criminal sale of a controlled substance in the second degree and is currently serving a prison sentence of six years to life. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding to challenge the denial of his application for participation in a temporary work release program. Supreme Court dismissed the petition and we affirm.

Participation in a temporary release program is a privilege, not a right (see Correction Law § 855 [9]), and our review of a determination denying an application to participate in such a program is limited to the consideration of whether the determination "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 [1984]; see Matter of Patterson v Goord, 1 AD3d 845, 846 [2003]). The record reflects that petitioner's application was denied due, in part, to his overall poor disciplinary record, recidivistic criminal history, prior parole revocation and the nature of the instant offense. [*2]Inasmuch as those were appropriate factors to consider (see 7 NYCRR 1900.4), it cannot be said that the determination was irrational or violated petitioner's statutory or constitutional rights and, therefore, it will not be disturbed (see Matter of Mottshaw v Joy, 307 AD2d 492, 492-493 [2003]; Matter of Martin v Goord, 305 AD2d 899, 900 [2003], lv denied 100 NY2d 510 [2003]; Matter of McGee v Recore, 277 AD2d 555, 556 [2000]). Petitioner's remaining contentions have been reviewed and found to be without merit.

Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.