Opinion
June 17, 1976
Appeal from a judgment of the Supreme Court at Special Term, entered December 1, 1975 in Clinton County, which denied petitioner's application, in a proceeding pursuant to CPLR article 78, seeking the removal of any designation in his prison records that he is a member of organized crime. Since April of 1973, petitioner has been continuously incarcerated in the Clinton Correctional Facility, a maximum security facility, as a result of his convictions of four counts of criminal usury, a class E felony. In the instant proceeding he seeks judicial review of an alleged decision by the Department of Correctional Services to deny him both participation in a temporary release program and a transfer to the medium security facility at Wallkill because he had been classified in prison records as a member of "organized crime". At Special Term, the court found that petitioner's claim that he has made application for participation in the release program and other programs is supported only by bare allegations, that he has failed to claim that he is eligible for said programs and that no facts are alleged to challenge the commissioner's denial of a transfer to him on the grounds of his instant offense, his codefendants and his previous criminal history. Accordingly, the court denied his application for relief in all respects. Upon our examination of the record herein, however, we find that respondent has neither filed a verified answer as required by CPLR 7804 (subd [d]) nor has he moved to dismiss the petition. Accordingly, we cannot pass upon the merits but must, pursuant to CPLR 7804 (subd [e]), remit the matter to Special Term with the direction that respondent submit an answer to the petition. Order reversed, on the law, without costs, and matter remitted to Special Term for further proceedings not inconsistent herewith. Greenblott, J.P., Kane, Mahoney, Main and Herlihy, JJ., concur.