Matter of Xao He Lu v Department of Corr. & Community Supervision

Matter of Xao He Lu v Department of Corr. & Community Supervision 2016 NY Slip Op 00553 Decided on January 28, 2016 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 28, 2016
519598

[*1]In the Matter of XAO HE LU, Appellant,

v

DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.

Calendar Date: December 15, 2015
Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

Xao He Lu, Comstock, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

Egan Jr., J.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (McKeighan, J.), entered August 14, 2014 in Washington County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Office of the Inspector General designating petitioner as a central monitoring case.

In 1996, petitioner was convicted of, among other things, two counts of kidnapping in the first degree and two counts of robbery in the first degree, after abducting the victims and holding them for ransom for nearly two weeks, and was sentenced to an aggregate prison term of 35 years to life. In 2012, petitioner was notified that he was being classified as a central monitoring case (hereinafter CMC) due to the nature of his

offense. That determination was affirmed upon administrative appeal. Petitioner commenced this CPLR article 78 proceeding challenging that determination and, following joinder of issue, Supreme Court dismissed the petition. This appeal ensued.

We affirm. We are unpersuaded by petitioner's contention that, because he was not designated a CMC upon his initial receipt into the custody of respondent, the belated designation based upon the nature of his conviction is arbitrary and capricious. Department of Corrections and Community Supervision Directive No. 0701 (IV) (F) specifically states that an inmate may be classified a CMC "at any time during his or her incarceration." In view of the foregoing, and given that the nature of the crimes for which petitioner was convicted was an appropriate factor to consider (see 7 NYCRR 1000.2, 1000.3; Dept of Corr & Community Supervision Directive [*2]No. 0701 [IV] [F]), we find no basis to conclude that the CMC designation was arbitrary or capricious and, therefore, it will not be disturbed (see Matter of Rodriguez v Fischer, 95 AD3d 1570, 1571 [2012], lv denied 19 NY3d 812 [2012]).

McCarthy, J.P., Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.