Opinion
May 20, 1993
Appeal from the Supreme Court, Albany County (Hughes, J.).
While incarcerated at Franklin Correctional Facility in Franklin County, petitioner applied to participate in a temporary work/furlough release program. Petitioner's application subsequently was denied "due to the very serious nature of [his] offense in which [he] shot [his] wife several times in front of [his] daughter and numerous school children". Petitioner thereafter commenced this CPLR article 78 proceeding alleging that the determination violated statutory and regulatory requirements and that it was irrational. Supreme Court dismissed the petition and this appeal by petitioner followed.
We affirm. Initially, we note that participation in a temporary release program is a privilege and not a right (see, Correction Law § 855). "The scope of judicial review * * * is limited to whether [the denial] violated any positive statutory requirement or denied a constitutional right of the inmate and whether [it was] affected by irrationality bordering on impropriety" (Matter of Gonzalez v Wilson, 106 A.D.2d 386, 386-387). Here, there was clearly no denial of any constitutional right and, contrary to petitioner's argument, the reasons stated for the denial satisfied the statutory requirements and were not irrational. Moreover, even if it is accepted that it was necessary that the denial discuss petitioner's institutional behavior and rehabilitation (see, Matter of May v Hongisto, 99 Misc.2d 918; but cf., Matter of Davis v New York State Div. of Parole, 114 A.D.2d 412 ), respondents did expressly note petitioner's institutional record as well as his criminal history. The denial not only delineated the crime for which petitioner was incarcerated but also specifically acknowledged his "positive institutional adjustment" (see also, 7 NYCRR 1900.4). Finally, we reject petitioner's contention that respondents' answer was untimely served, as well as his claim that Supreme Court improperly rendered its decision without considering his reply.
Weiss, P.J., Levine, Crew III, Casey and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.