Taylor v Fischer

[*1] Taylor v Fischer 2009 NY Slip Op 50903(U) [23 Misc 3d 1123(A)] Decided on March 16, 2009 Supreme Court, Albany County Zwack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 16, 2009
Supreme Court, Albany County

Damion Taylor, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

Brian Fischer, Commissioner, Department of Correctional Services, Respondent.



8842-08



Damion Taylor,

Petitioner Pro Se

Mohawk Correctional Facility

P.O. Box 8450

6100 School Road

Rome, New York 13440

Andrew Cuomo

Attorney General of the State of New York

Attorneys For Respondent

C. Harris Dague, Esq., of counsel

The Capitol

Albany, New York 12224-0341

Henry F. Zwack, J.

In this CPLR Article 78 proceeding, petitioner, an inmate at Mohawk Correctional Facility, challenges a final administrative determination that he is properly required to participate in the Sex Offender Counseling Treatment Program (SOCTP). Respondent opposes the petition.

In 2005, petitioner was sentenced to a determinate term of imprisonment of 9 years, with 5 years post release supervision, for the crime of Kidnapping in the second degree. Petitioner filed an inmate grievance on April 16, 2008, objecting to being told by his correction counselors that he must participate in sex offender treatment because he was not convicted of a sex crime. On April 29, 2008, the inmate grievance committee referred the matter to the Central Office. The grievance was forwarded to a corrections counselor on April 21, 2008 for a response. The corrections counselor's response on April 25, 2008 was as follows: "Mr. Taylor was approved by the Director of Guidance and Counseling for transfer to Mohawk to attend the sex offender counseling and treatment program." Petitioner appealed to the Superintendent and this appeal was denied on May 12, 2008 by a determination which stated in relevant part: "Grievance is denied. Grievant is advised to complete assigned programs." Petitioner appealed to the Central Office Review Committee, which issued a final determination on June 25, 2008, denying petitioner's appeal and stating in its entirety as follows: Upon full hearing of the facts and circumstances in the instant case, and upon recommendation of Department's Counsel, the action requested herein is hereby denied. CORC upholds the determination of the Superintendent for the reasons stated.CORC notes that the department has broad discretion in determining what programming to recommend for each inmate under Correction Law §137 and §805. Neither a conviction of a Penal Law Article 130 sex offense nor a crime defined as a sex offense under the Sex Offender Registration Act is required for a referral to the Sex Offender Counseling Treatment Program. Rather, a number of factors may serve as the basis for a referral to the program including conviction of a sex offense, records indicating that a sexual offense occurred during the commission of the crime as documented in the pre-sentence investigation report or related records where the crime of conviction is not a sex offense, or a guilty disposition of a sex offense in violation of the Department's Standards of Inmate Behavior. CORC notes that the Office of Guidance and Counseling acted within their discretion in determining that the grievant was appropriately referred to the SOCTP based upon the nature of his crime; in particular records describing the [*2]grievant's crime indicate that the grievant rubbed and pressed the muzzle of his gun around the victim's chest area and breasts and stated "what are you going to do about it?" CORC notes that the grievant was transferred to participate in a low-risk modular SOCTP.

Petitioner then commenced the present proceeding. He argues that his crime was not sexually motivated and that the references relied upon in his pre-sentence report do not warrant such a finding. The Court notes that the pre-sentence report is not a part of the record before this Court.

Respondent opposes the petition, arguing that petitioner was recommended for placement in low risk modular SOCTP and that there is an indication in petitioner's pre-sentence report "that conduct of a sexual nature took place during the instant offense."

The Court has reviewed the record and the relevant statutes and finds that based upon the evidence before this Court, it is not clear that the required statutory definition was considered by respondent. The Court recognizes the limited standard of review, and the fact that the Court may not substitute its judgment for that of the agency. However, in the instant case, it does not appear that the proper statutory analysis was conducted prior to the determination to place petitioner in SOCTP.

Correction Law § 622 provides that respondent "shall make available a sex offender treatment program for those inmates who are serving sentences for . . . offenses defined in subdivision (p) of section 10.03 of the mental hygiene law, and are identified as having a need for such program in accordance with sections eight hundred three and eight hundred five of this chapter." Section (p) of Mental Hygiene Law 10.03 defines "sex offense" and includes in the definition acts constituting "a designated felony, as described in subdivision (f) of this section, if sexually motivated and committed prior to the effective date of this article [April 13, 2007]." Petitioner's instant offense, kidnapping in the second degree, is undisputedly one of the listed "designated felonies" pursuant to Mental Hygiene Law 10.03(f). The term "sexually motivated" is defined by the Mental Hygiene Law: "the act or acts constituting a designated felony were committed in whole or in substantial part for the purpose of direct sexual gratification of the actor."

There is no evidence that respondent considered the Mental Hygiene Law definition of "sexually motivated" in the case of petitioner and prior to recommending him for the SOCTP. The record before this Court does not contain the pre-sentence report as noted above, however petitioner has provided what appears to be copies of felony complaints related to the instant offense. Petitioner argues that the motivation for the instant offense was money and that there is no evidence that the crime was sexually motivated. The Court cannot determine whether petitioner's claims are accurate based upon the record before the Court, however the Court does find that the petition must be granted in part because it is unclear that the appropriate statutory analysis was considered by respondent in the present case. Therefore, this matter is remanded to the [*3]Superintendent of Mohawk Correctional Facility for review consistent with this Decision/Order/Judgment.

Accordingly, it is

ORDERED and ADJUDGED, that the petition is granted to the extent that the results of petitioner's inmate grievance proceeding are vacated and the matter remanded to the Superintendent of Mohawk Correctional Facility, with a direction to re-process petitioner's inmate grievance complaint in a manner not inconsistent with this Decision/Order/Judgment.

This constitutes the Decision, Order and Judgment of the Court. All papers including this Decision, Order and Judgment are returned to the attorneys for the respondent. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:March, 2009

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice