Matter of Jones v Joy

[*1] Matter of Jones v Joy 2007 NY Slip Op 52240(U) [17 Misc 3d 1133(A)] Decided on November 13, 2007 Supreme Court, St. Lawrence County Feldstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2007
Supreme Court, St. Lawrence County

In the Matter of the Application of Larry J. Jones, Petitioner, For a Judgment Pursuant to Article 78 Of the Civil Practice Law and Rules

against

Debra Joy, Director, Temporary Release Program, New York State Department of Correctional Services, Respondent.



124961

S. Peter Feldstein, J.

This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of Larry J. Jones, verified on July 1, 2007, and stamped as filed in the St. Lawrence County Clerk's office on July 5, 2007. Petitioner, who is an inmate at the Ogdensburg Correctional Facility, is challenging the respondent's failure to place him in the DOCS Comprehensive Alcohol and Substance Abuse Treatment (CASAT) program in accordance with the provisions of Penal Law §60.04(6). The Court issued an Order to Show Cause on July 9, 2007, and has received and reviewed respondent's Answer, verified on August 24, 2007. The Court has received no Reply thereto from the petitioner.

On August 24, 2006, the petitioner was sentenced in Chautauqua County Court, as a second felony offender, to a determinate term of imprisonment of 4½ years, plus 3 years of post-release supervision, upon his conviction of the crime of Criminal Possession of a Controlled Substance 4°. The petitioner alleges, and the respondent concedes, that the sentencing court directed the New York State Department of Correctional Services to enroll petitioner in the CASAT program, provided petitioner satisfied the statutory eligibility criteria, pursuant to Penal Law §60.04(6).

The CASAT program was designed ". . . to prepare chemically dependant inmates for a return to the community, to reduce recidivism by providing education and counseling focused on continuing abstinence from all mood altering substances, and to encourage participation in self-help groups." 7 NYCRR §1950.1. Under DOCS regulations CASAT is a three-phase program with Phase 1 occurring in a DOCS alcohol and substance abuse treatment correctional annex. Such a facility is defined in Correction Law §2(18) as "[a] medium security correctional facility consisting of one or more residential dormitories which provide intensive alcohol and substance abuse treatment services to inmates who: (i) are otherwise eligible for temporary release, or (ii) stand convicted of a felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law, and are within six months of being an eligible [*2]inmate as that term is defined in subdivision two of section eight hundred fifty-one of this chapter including such inmates who are participating in such program pursuant to subdivision six of section 60.04 of the penal law." Phase 2 of CASAT involves ". . . a transitional period in a community reintegration component, which would include transfer to a work release facility for employment and placement in appropriate community-based programs . . ." 7 NYCRR §1950.2(b). CASAT Phase 3, in turn, consists of ". . . an aftercare component in the community under parole supervision, which will provide for an orderly community transition for participants granted release by the parole board." 7 NYCRR §1950.2(c).

Outside of the Penal Law §60.04(6) context, DOCS is vested with the sole administrative responsibility for placing inmates in the CASAT program and for the transition of inmates who have successfully completed Phase 1 of the program into Phase 2.[FN1] Under DOCS regulations, again outside the context of Penal Law §60.04(6), inmates can not be placed in CASAT Phase 1 unless they have already been approved for work release or presumptive work release. 7 NYCRR §1950.3(a)(5). Thus, under the DOCS regulatory scheme, inmates who successfully complete CASAT Phase 1 can transition into CASAT Phase 2 without a further determination of work release eligibility. In theory, there should be no instances where an inmate successfully completes CASAT Phase 1 but is unable to proceed onto Phase 2 because he or she is not eligible for work release. Ultimately, an otherwise eligible inmate may only be deemed unsuitable for presumptive work release based upon his or her crime of commitment, criminal history, custodial adjustment or outstanding warrants/detainers. 7 NYCRR §1951.1(c)(4).

Penal Law §60.04(6) provides, in relevant part, as follows: "When the court imposes a sentence of imprisonment which requires a commitment to the state department of correctional services upon a person who stands convicted of a controlled substance or a marijuana offense, the court may, upon motion of the defendant in its discretion, issue an order directing that the department of correctional services enroll the defendant in the comprehensive alcohol and substance abuse treatment program in an alcohol and substance abuse correctional annex as defined in subdivision eighteen of section two of the correction law, provided that the defendant will satisfy statutory eligibility criteria for participation in such program. Notwithstanding the foregoing provisions of this subdivision, any defendant to be enrolled in such program pursuant to this subdivision shall be governed by the same rules and regulations promulgated by the department of correctional services, including without limitation those rules and regulations establishing requirements for completion and those rules and regulations governing discipline and removal from the program."[*3]

In the case at bar the petitioner's temporary release program application (presumptive work release) was denied by the Temporary Release Committee (TRC) at the Ogdensburg Correctional Facility based upon the nature of the crime underlying petitioner's incarceration as well as his recidivist, violent criminal history. The explanation of the TRC for its denial determination was as follows:

"DENIAL IS BASED ON THE NATURE OF THE I.O. - CPCS 4TH WHICH REPRESENTS SUBJECT'S 2ND NYS TERM. LEGAL HISTORY INCLUDES A FELONY CONVICTION AND A STATE TERM FOR ATT. MURDER 2ND. YOU MAY NOT REAPPLY FOR CASAT UNTIL 12/2008."

The petitioner did not take an administrative appeal from the TAC's denial determination. This proceeding ensued.

The petitioner maintains that he met the only statutory eligibility requirement for enrollment in the CASAT program in that he was less than 2 years and 6 months away from parole eligibility. Thus, ". . . Petitioner contends that NYSDOCS decision to deny him enrollment was no more than a failure to perform a duty enjoined upon it by law." The respondent does not dispute that petitioner is statutorily eligible to be considered for participation in the CASAT program. She maintains, however, that the petitioner is "mistaken" in suggesting that he may not be denied temporary release approval once he meets the statutory eligibility requirements for participation in CASAT. According to the respondent, ". . . the petition must be dismissed because petitioner's claim involves no statutory violation or constitutional denial and the decision he challenges is rational." The respondent also contends that since the petitioner never took an administrative appeal from the TRC denial determination judicial intervention would be "improper."

The Court initially finds that petitioner's failure to take administrative appeal from the TRC denial determination does not warrant the dismissal of this proceeding. The petitioner maintains that the respondent was statutorily obligated, pursuant to the provisions of Penal Law §60.04(6), to enroll him in the CASAT program once he met the statutory eligibility criteria. The respondent, as noted previously, maintains otherwise. The Court finds that the resolution of the issue before it involves a pure question of law involving statutory interpretations and, therefore, exhaustion of administrative remedies is not required. See Cady v. Clark, 176 AD2d 1055, Vrooman v. Prevost, 80 AD2d 933 and People ex rel Hicks v. James, 150 Misc 2d 950.

The Court's review of the statutory language leads it to conclude that the sentencing court's authority to direct DOCS to enroll a defendant in the CASAT program is limited to Phase 1 of such program. In this regard the Court notes that the relevant language of Penal Law §60.04(6) merely specifies that the sentencing court has authority to direct ". . . that the department of correctional services enroll the defendant in the comprehensive alcohol and substance abuse treatment program in an alcohol and substance abuse correctional annex as defined in subdivision eighteen of section two of the correction law . . ." (Emphasis added). Only Phase 1 of the CASAT program takes place in an alcohol and substance abuse treatment correctional annex. Compare 7 NYCRR §1950.2(a) with 7 NYCRR §1950.2(b) and (c). In addition, Corrections Law §2(18), which sets forth the definition of an alcohol and substance abuse treatment correctional annex, characterizes the period of court-ordered drug abuse treatment authorized under Penal Law §60.04(6) as "corrections based." The Court, moreover, [*4]finds the language of Penal Law §60.04(6) to the extent the statute provides that notwithstanding its provisions, a defendant to be enrolled in the CASAT program is to be governed by DOCS rules and regulations establishing requirements for "completion" of the program can logically be read as requiring DOCS administrative approval for work release or presumptive work release before an inmate placed in the CASAT program pursuant to Penal Law §60.04(6) can be temporarily released from DOCS custody for CASAT Phase 2 participation. Finally, the Court notes that Corrections Law §2(18) goes on to provide, in relevant part, that "[n]otwithstanding any other provision of law, any person who has successfully completed no less than six months of intensive alcohol and substance abuse treatment services in one of the department's eight designated alcohol and substance abuse treatment correctional annexes . . . may be transferred to a program operated by or at a residential treatment facility . . ." (Emphasis added).

Although the statutory language is frustratingly vague and does leave room for conflicting interpretation, this Court is simply not persuaded that the enactment of Penal Law §60.04(6) (L 2004, ch 738, §20) was intended to empower a sentencing court to make a final, irrevocable determination, at sentencing, as to the suitability of a defendant/inmate for temporary release from DOCS custody to participate in Phase 2 of the CASAT program at some future date, thereby divesting DOCS of its statutory authority to make such a discretionary determination at or about the time of the proposed release. (Correction Law §852(1) and 7 NYCRR Parts 1900 and 1951). Notwithstanding the foregoing, where, as here, a sentencing court has directed DOCS to enroll a defendant/inmate in the CASAT program pursuant to the provisions of Penal Law §60.04(6), the Court finds no lawful basis for DOCS to deny such defendant/inmate's enrollment in CASAT Phase 1, upon his or her statutory eligibility, even if DOCS has denied such inmate's application for temporary work release or presumptive work release.

Based upon all of the above, it is, therefore, the decision of the Court and it is hereby

ADJUDGED, that the petition is granted, without cost or disbursements, but only to the extent that the respondent is directed to forthwith enroll petitioner in Phase 1 of the CASAT program in accordance with the provisions of this Decision and Judgment.

Dated:November 13 , 2007 at

Indian Lake, New York.__________________________

S. Peter Feldstein

Acting Supreme Court Justice Footnotes

Footnote 1:DOCS obviously does not exercise administrative control over inmates moving on to CASAT Phase 3 since participants in Phase 3 must first be granted release from DOCS custody by the Parole Board.