Gary Waters v Central Office Review Committee of the Dept. of Correction and Community Supervision

[*1] Gary Waters v Central Office Review Committee of the Dept. of Correction and Community Supervision 2015 NY Slip Op 51979(U) Decided on September 14, 2015 Supreme Court, Albany County Fisher, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 14, 2015
Supreme Court, Albany County

Gary Waters, 06A5691, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

Central Office Review Committee of the Dept. of Correction and Community Supervision, Catherine M. Jacobsen, Superintendent of Wallkill Correctional Facility, Respondents.



1184-15



Gary Waters, 06A5691

Petitioner, pro se

Hon. Eric T. Schneiderman

Counsel for Respondents

Attorney General of New York State

(Keith J. Starlin, Esq. Assistant Attorney General, Of Counsel)

The Capital

Albany, New York 12224
Lisa M. Fisher, J.

Petitioner, an inmate in the care and custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this CPLR Article 78 proceeding to challenge Respondents' determination denying Petitioner's eligibility status for limited credit time allowance after he participated in the "Puppies Behind Bars" program. This program, as he describes it, permits an inmate to foster a puppy for a period of at least two years before becoming eligible for a six-month Limited Time Credit Allowance (hereinafter "LTCA") against his sentence. However, as Respondents describe the program and as Petitioner also points out, Directive 4792 requires "[a] minimum of two years successful participation in the Puppies Behind Bars Program . . . . as a puppy handler or alternative puppy handler AND [*2]completed one or more of the following Penn Foster Certificates: Dog Obedience Trainer/Instructor, Pet Groomer, or Veterinary Assistant." ([emphasis preserved from original]; accord 7 NYCRR § 290.2 [d] [6].) Petitioner did not acquire this additional certificate which is why his application was denied. He claims since Correction Law § 803-b does not provide for this additional certificate requirement which both Directive 4792 and the NYCRR do, Respondents' have violated State Administrative Procedure Act §§ 202, 203, and Correction Law § 803-b.

Respondents disagree and argue that Petitioner has failed to exhaust his administrative remedies. Further, Respondents argue that the determination was not arbitrary and capricious as Petitioner did not comply with the Directive and NYCRR which required a certificate Petitioner did not obtain. In addition, Respondents argue that Petitioner has failed to state a cause of action as to his claims of violations of Respondents' rule-making authority.

"It is well settled that an administrative agency's determination must be challenged through every available administrative remedy before it can be challenged in the courts." (Matter of Schenectady Nursing & Rehabilitation Ctr., LLC v Shah, 124 AD3d 1023, 1024 [3d Dept 2015]; accord Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978] ["It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law."]; see Matter of Hudson Riv. Val., LLC v Empire Zone Designation Bd., 115 AD3d 1035, 1037 [3d Dept 2014].) This doctrine " furthers the salutary goal[] of . . . preventing premature judicial interference' with the administrative process." (Matter of Connerton v Ryan, 86 AD3d 698, 699 [3d Dept 2011], quoting Watergate II Apts., 46 NY2d at 57.) The reasoning behind this doctrine is that "[a] reviewing court usurps the agency's function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action." (Young Men's Christin Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375 [1975], quoting Unemployment Compensation Commission of Territory of Alaska v Aragan, 329 US 143, 155 [1946].)

Here, Petitioner filed an administrative appeal on February 23, 2015 of the adverse Superintendent's decision dated February 18, 2015. Simultaneously, Petitioner signed the instant Article 78 proceeding which was formally commenced by filing on March 2, 2015 via Order to Show Cause signed March 16, 2015. Thus, Petitioner had appealed the Superintendent's decision and filed this Article 78 proceeding at the same time and before he had received the final administrative decision. Moreover, subdivision (3) of Correction Law § 803-b, which establishes the puppies behind bars program, requires that "[a]ny action by the commissioner pursuant to this section shall be deemed a judicial function and shall not be reviewable if done in accordance with law." (See also Correction Law § 805.) Which, as aforementioned, Petitioner did not. This warrants dismissal on procedural grounds.

Notwithstanding, substantively Petitioner's application must also be dismissed. Correction Law § 803-b (2) (a) provides that "[e]very eligible offender . . . may earn a limited credit time allowance if such offender successfully participates in the work and treatment program assigned pursuant to [Correction Law § 805] and [a] successfully completes one or more significant programmatic accomplishments." Under Correction Law § 803-b (1) (c) (ix), a "significant programmatic accomplishment" means that an inmate "successfully work[ed] in the puppies behind bars program for a period of no less than two years." However, "[n]o person [*3]shall have the right to demand or require the credit authorized by this section." (Correction Law § 803-b [3]; 7 NYCRR § 290.1 ["An LCTA benefit is a privilege to be earned by the inmate and no inmate has the right to demand or require that any such allowance be granted."].)

Further, the commissioner still retains discretion to issue such certificate of earned eligibility. (See Correction Law § 805 ["If the commissioner determines that the inmate has successfully participated in the program he may issue the inmate a certificate of earned eligibility."] [emphasis added].) Even where the inmate has already earned the LTCA through Section 805, as permitted by Correction Law § 803-b (2) (a), Respondents may still decline to apply such credit to an inmate's sentence. (See also Matter of Romer v Dennison, 24 AD3d 866, 867 [3d Dept 2005] ["Contrary to petitioner's assertion, the receipt of an earned eligibility certificate does not preclude the [Parole Board] from denying parole."].)

Here, Petitioner is demanding his LTCA which is impermissible under clear and explicit statutory law. He also did not acquire the second certificate as required by Directive 4792 and 7 NYCRR § 290.2 (d) (6). Moreover, the end reason for the program was Petitioner's poor participation/programming, which also defuses the requirement to "successfully participate[]" in the program.[FN1] Notwithstanding all of this, Petitioner's claim still fails as—even if he properly complied with everything under the Correction Law—nowhere in the statutory authority, including Correction Law § 803-b, does it require Respondents to give Petitioner LTCA; this is still discretionary and no inmate can demand such relief. As such, Petitioner's claim must substantively be dismissed as well.

The Court finds that the determination was not made in violation of lawful procedure, is not affected by an error of law, and is not irrational, arbitrary and capricious, or an abuse of discretion. The Court concludes that the Petition must be dismissed.

To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.

Thereby, it is hereby

ORDERED and ADJUDGED, that the Petition is DISMISSED and all relief requested therein is denied in its entirety.

This constitutes the Decision/Order/Judgment of the Court. Please note that a copy of this Decision/Order/Judgment along with the original papers are being filed by Chambers with the County Clerk. The original Decision/Order/Judgment is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.

IT IS SO ORDERED AND ADJUDGED.

DATED: September 14, 2015

Catskill, New York

E N T E R :

_______________________________

HON. LISA M. FISHER

SUPREME COURT JUSTICE

Papers Considered:

Petition, with exhibits, dated February 23, 2015;

Answer, dated August 14, 2015; Attorney Affirmation of Keith J. Starlin, Esq., with annexed exhibits, dated August 14, 2015; and

Reply, dated August 24, 2015. Footnotes

Footnote 1:Even though he completed two years that was the "minimum" and does not automatically establish compliance.