Opinion
No. 6610–14.
07-09-2015
In the Matter of the Application of Miguel GONZALEZ, 11–A–05956, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Anthony J. ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
Robert S. Dean, (Jill K. Sanders, of Counsel), New York, Attorney for Petitioner. Eric T. Schneiderman, Attorney General, (Joshua E. McMahon, Assistant Attorney General) Albany, Attorney for Respondent.
Robert S. Dean, (Jill K. Sanders, of Counsel), New York, Attorney for Petitioner.
Eric T. Schneiderman, Attorney General, (Joshua E. McMahon, Assistant Attorney General) Albany, Attorney for Respondent.
JUDITH A. HARD, J.
Petitioner, Miguel Gonzalez, brings this Article 78 proceeding to challenge the following determinations :
Petitioner also requested, in his Notice of Motion, an order directing respondent to immediately release petitioner. As petitioner was released on February 4, 2015, petitioner withdrew said request for relief.
1. Respondent's determination to designate Woodbourne Correctional Facility "a residential treatment facility";
2. Respondent's determination to hold petitioner at Woodbourne Correctional Facility;
3. Respondent's failure to perform duties enjoined upon it by law, by failing to provide petitioner with programs and opportunities directed toward his rehabilitation and reintegration into the community, and failing to assist petitioner with locating housing; and
4. Respondent's determination to deny petitioner four months and ten days of "good time" credit.
Petitioner alleges that as a result of the above determinations by respondent, he has been illegally incarcerated in a medium-security prison. Respondent opposes the application. Respondent answered the petition, arguing that it had no merit and requesting that it be denied. Thereafter, at the request of petitioner, oral argument was held on February 25, 2015.
FACTS
On January 5, 2012, petitioner pled guilty to one count of rape in the second degree in violation of Penal Law § 130.30(1) under New York County Indictment No.2222–2011 (Petition, ¶ 8; Petition, Exhibit A). On April 3, 2012, petitioner was sentenced to 2½ years of incarceration followed by 3 years of post-release supervision (id. ). Petitioner entered the care of the Department of Corrections and Community Supervision (DOCCS) on April 19, 2012 (id. ). His conditional release date was May 20, 2014, and the maximum expiration date on his sentence was September 30, 2014 (id. ).
Pursuant to Correction Law § 168–a (2), Penal Law § 130.30 is classified as a "sex offense". As such, petitioner was required to register as a sex offender (see Correction Law § 168–f ). A Sex Offender Registration Act (SORA) hearing was held before Hon. Daniel P. Fitzgerald of the New York County Supreme Court. Petitioner appeared on April 4, 2014 for said hearing and the case was adjourned for written submissions by the parties. On May 2, 2014, Judge Fitzgerald issued a provisional Order designating petitioner as a Level 2 Sex Offender which stated, in pertinent part, "[DOCCS] shall consider this Order permanent for the purposes of satisfying the sex offender registration requirement pursuant to Correction Law § 168 et seq. in order to release the defendant from its custody." (Petition, Exhibit B).
On or about May 2, 2014, petitioner received an update from the Time Allowance Committee (TAC) at Franklin Correctional Facility (Franklin), stating that petitioner's maximum expiration date (ME) was September 30, 2014, but due to a credit of four months and 10 days of good time, his conditional release date (CR) was May 20, 2014, and that he would be on post-release supervision (PRS) until May 20, 2017 (Petition, Exhibit C).
Petitioner was not released on his CR date of May 20, 2014 (Petition, ¶ 13).
Because the victim of petitioner's sex offense was a minor, petitioner is subject to the restrictions of the Sexual Assault Reform Act of 2000 (SARA), which prohibits respondent from allowing him to live within one thousand feet of a school or a place where children congregate in while on PRS (see Executive Law 259–c [14 ] ). Petitioner argues that instead of locating him a shelter or a residence in an appropriate location and releasing him back to the community, respondent instead kept him beyond his CR date (Petition, ¶ 11).
On June 6, 2014, petitioner appeared before the SORA hearing court. On August 22, 2014, he reappeared before said hearing court and Justice Fitzgerald adjudicated him a Level 1 offender, the lowest possible adjudication (Petition, ¶ 12; Petition, Exhibit D).
On or about September 10, 2014, petitioner received an update from the TAC at Ulster Correctional Facility (Ulster), which indicated that his ME date was September 30, 2014, that he had a credit of four months and 10 days of good time, and that his CR was May 20, 2014 (Petition, ¶ 13; Petition, Exhibit E). The time computation listed his PRS maximum expiration date as September 30, 2017 (id. ). Petitioner argues that despite the fact that petitioner had lost no good time, he was deprived of the four months and 10 days of good time he had earned by his continuing incarceration from May 20, 2014 until September 30, 2014 and the extension of the expiration date of his PRS from May 20, 2017 until September 30, 2017 (id. ).
On or about September 24, 2014, petitioner met with Offender Rehabilitation Coordinator (ORC) Sauther, who told him that he would soon be released to PRS but would continue to be held in a residential treatment facility (RTF) because petitioner had not located a SARA-compliant residence to which he could be released. On the same day, he also met with Senior Offender Rehabilitation Coordinator (SORC) King, who discussed the same with him (Petition, ¶ 14).
On or about September 26, 2014, petitioner met with a woman who identified herself as being a member of the parole committee (Petition, ¶ 15). Petitioner alleges that at the meeting with her, he was required to sign forms acknowledging he understood the terms of his PRS, including a condition that he would continue to be detained in an RTF (id.; Petitioner's Exhibit F). Petitioner alleges that respondent knew as of May 2, 2014, it would not release petitioner on his CR date (id. ).
On or about September 29, 2014, petitioner was transferred from Franklin Correctional Facility (Petition, ¶ 16) and arrived at Woodbourne Correctional Facility the following day (id. ).
On October 16, 2014, petitioner filed an inmate grievance, challenging his placement at Woodbourne RTF on the basis that: (1) it does not comply with the statutory requirements of Correction Law § 73 or Correction Law § 2(6) ; (2) his planned residence upon release is Manhattan which is more than 100 miles from Woodbourne RTF; and (3) that it if he were going to be placed in an RTF, he should have been transferred on his CR date, rather than his ME date (Petition, ¶ 21).
On October 28, 2014, petitioner and three other inmates appeared before the Inmate Grievance Committee (IGRC). Petitioner's grievance hearing was consolidated with the hearings of other inmates who were also challenging their continued incarceration at Woodbourne RTF (Petition, ¶ 22; Petitioner's Exhibit L). The IGRC stated that "... the committee has not been provided with sufficient evidence to support the investigative response of the SORC that Woodbourne Correctional Facility was designated a RTF" (id. ). The IGRC further stated that Directive # 0059 "gives Woodbourne no RTF designation" and recommended an interpretation of Correction Law § 73 be issued by DOCCS Counsel as applied to designated RTFs (id. ).
Petitioner agreed with the IGRC, but appealed the decision anyway on October 29, 2014 (Petitioner's Exhibit L). On November 3, 2014, the Superintendent denied the grievance, stating that petitioner "has been assigned to an RTF facility" and that he "has opportunities provided by law that are not available to the general population inmates" (Petition, ¶ 23; Petitioner's Exhibit M). The Superintendent also indicated that RTF inmates meet with their Offender Rehabilitation Coordinators more frequently and that they are allowed to use the telephone and correspondence privileges to assist them with securing a SARA compliant residence (id. ).
On November 7, 2014, petitioner appealed to DOCCS' Central Office Review Committee (CORC). Petitioner alleges that respondent had not rendered a decision on said appeal as of the time he commenced the subject proceeding.
Petitioner states that beginning on or about October 27, 2014 and continuing until November 20, 2014, he was enrolled in DOCCS' Residential Treatment Facility Program (Petition, ¶ 24, Petitioner's Exhibit N). He stopped attending the Residential Treatment Facility Program on November 21, 2014, when he was assigned to a work crew (Petition, ¶ 24). He does not know if he is considered by DOCCS to have completed the same (id. ).
On November 20, 2014, the Superintendent of Woodbourne Correctional Facility met with petitioner and told him that he would become part of the "outside crew" (Petition, ¶ 25). Petitioner began his work assignment the following day, and states that he, along with other RTF inmates, are stigmatized because the "outside crew" includes inmates serving their original sentences who are aware that RTF inmates are sex offenders who get paid at a higher rate than non-RTF inmates (id. ).
On November 26, 2014, petitioner was assigned a new parole officer, namely, Parole Officer M. Palmer from DOCCS' Poughkeepsie Area Office (Petition, ¶ 26; Petitioner's Exhibit O). Petitioner states that he lived in Manhattan prior to his incarceration and intends to reside there thereafter and that he has no connection to Poughkeepsie or Dutchess County (Petition, ¶ 26). To meet with his parole officer, petitioner was put in a van, wearing his prison-issued clothing, with four other RTF inmates and two correction officers and that they traveled approximately 75 minutes each way to Poughkeepsie. Petitioner states that Parole Officer Palmer discussed his case with Parole Officer Hamilton from DOCCS' Manhattan VI Area Office (petitioner's originally assigned parole officer) (Petition, ¶ 26). Petitioner states that during his meetings with his parole officer, he was questioned about whether he has located any suitable housing, and that the only suitable housing proposed by Parole Officer Palmer was a room in a heavily-monitored "therapeutic community" in Staten Island, which would prevent him from being employed and make it impossible for him to pay the cost of $620.00 per month (id. ).
Petitioner now argues that he was illegally incarcerated in a medium-security prison since May 20, 2014, because: (1) Woodbourne Correctional Facility should not have been designated an RTF because it does not comply with statutory requirements set forth in Correction Law §§ 2(6) and 73 ; (2) that respondent has failed to provide petitioner with programs and opportunities directed toward his rehabilitation and total integration into the community, and has failed to assist petitioner with locating suitable housing; and (3) respondent has denied petitioner four months and ten days of "Good Time" without just cause.
In opposition, respondent argues that the petition is moot by virtue of petitioner's release from Woodbourne Correctional Facility and further, that it has no merit because: (1) although petitioner was eligible to be conditionally released earlier, he was not released because he could not satisfy one of the special conditions imposed by the Board of Parole, i.e. he was unable to provide a proposed residence within the community that it outside of "school grounds"; (2) when petitioner still could not find a suitable residence at the time of his ME date, he was appropriately transferred to an RTF until such time that an approved residence became available; and (3) Woodbourne Correctional Facility has been designated an RTF and is authorized for the placement of inmates who are released to parole, but are in need of services to find appropriate housing. The Court agrees.
LAW AND ANALYSIS
Mootness Doctrine
Where a determination of an administrative body is challenged and the conduct ceases to affect petitioner before his claim has been determined, the Court is deprived of an actual controversy, and the petition will be dismissed as moot (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–714 [1980] ; see also Schermerhorn v. Becker, 64 AD3d 843 [3d Dept 2009] ). "A proceeding is considered moot where the rights of the parties are not directly affected by the determination of the proceeding and the interest of the parties is not an immediate consequence of the judgment" ( Matter of Bath Petroleum Storage, Inc. v. New York State Dept. of Environmental Conservation, 272 A.D.2d 746, 747 [3d Dept 2000] ).
An exception to the mootness doctrine exists where there is: (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d at 714–715 ).
In the present case, petitioner was released from Woodbourne Correctional Facility on February 4, 2015. Therefore, his rights would not be directly affected by the determination of the proceeding and his interests would not be an immediate consequence of this judgment. The Court must therefore look to see if the exception to the mootness doctrine applies.
Correction Law § 73(3) requires the establishment of programs and services directed toward the rehabilitation and reintegration of persons transitioning through RTF status (McGrath Affidavit, ¶ 9). Petitioner alleges that Woodbourne RTF failed to provide him with such services and programs and further that it is not an appropriately designated RTF because, among other things, it is located more than 100 miles from Manhattan, which is where petitioner intended on residing after being released. The Court concludes that although said issues, i.e. whether petitioner has or has not received certain programs and services directed toward his rehabilitation and reintegration into the community, or whether Woodbourne's RTF is within close proximity to petitioner's intended community of residence, may not be questions capable of repetition, yet evading review, as they relate to petitioner, now that he has been released, the same issues are capable of repetition as they relate to the public. However, these issues, as well as those relating to the designation of facilities as RTFs, or the appropriateness of a certain RTF for a specific inmate, have been raised and addressed by other courts and therefore are not evading review (see People ex rel. White v. Superintendent, Woodbourne Correctional Facility, 45 Misc.3d 1202[A] [Supreme Court, Sullivan County, September 25, 2014]; People ex rel. Colon v. Superintendent, Woodbourne Correctional Facility, Index No. 1427/14 [Supreme Court, Sullivan County, September 25, 2014]; People ex rel. Johnson v. Superintendent, Fishkill Correctional Facility, 47 Misc.3d 984 [Supreme Court, Dutchess County, March 3, 2015]; cf. People ex rel. Tony Simmons v. Superintendent, Hudson Correctional Facilty, Index No. 8291–14 [Supreme Court, Columbia County, February 18, 2015] ).
In addition, petitioner has failed to show the existence of any significant or important questions which have not previously been decided or passed on. In People ex rel. White v. Superintendent, Woodbourne Correctional Facility, supra, an inmate was ordered to continue his post-release supervision at Woodbourne RTF after the conclusion of his maximum expiration date because, like petitioner herein, he was unable to provide an approved residence for community release (id. ). In said case, the Court held that Woodbourne Correctional Facility was appropriately designated an RTF under 7 NYCRR § 100.50, that respondent was authorized by 7 NYCRR § 100.50 to place petitioner in an RTF after he was unable to provide a viable residence at the time of his maximum expiration date, and further, that respondent was authorized by Corrections Law § 73(10) to place petitioner at Woodbourne RTF for his post-release supervision (id. ). The Court disagrees with petitioner that this case is distinguishable from People ex rel. White v. Superintendent, Woodbourne Correctional Facility, supra, as it relates to this issue.
Based upon the foregoing, the Court concludes that the exception to the mootness doctrine is not applicable, thereby warranting denial of the petition.
However, even if the issues in the petition were not moot, denial would be warranted for the reasons set forth below.
Good Time Credit/Conditional Release
A credit for "good time" refers to a time allowance against the maximum term of imprisonment imposed by a court ( Correction Law §§ 803[1][a], 804 [1 ] ). "Good behavior allowances are in the nature of a privilege ... and no inmate has the right to demand or to require that any good behavior allowance be granted to him [or her]" ( Edwards v. Goord, 26 AD3d 659, 660 [3d Dept 2006], lv denied 7 NY3d 710 [2006] quoting 7 NYCRR 260.2 ). In assessing whether to grant a good behavior allowance, the TAC must "consider the entire file of the inmate" ( 7 NYCRR section 261.3 [b] ). A good time allowance may be withheld for "bad behavior, violation of institutional rules or failure to perform properly in the duties or program assigned" ( Correction Law section 803[1][a] ). The determination to withhold a good time behavior allowance is discretionary and, as long as it is made in accordance with law and is based upon a review of an inmate's entire institutional record, it is not subject to judicial review (see Fowler v. Fischer, 98 AD3d 1212 [3d Dept 2012] ; Correction Law § 803[4] ).
Petitioner was convicted for violating Penal Law § 130.30(1). Penal Law § 130.30 states, as follows:
"[a] person is guilty of rape in the second degree when: 1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or 2. he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act. Rape in the second degree is a class D felony."
Because of petitioner's conviction for violating Penal Law § 130.30(1), he is subject to the provisions of Executive Law § 259–c (14), which states, in relevant part:
"notwithstanding any other provision of law to the contrary, where a person serving a sentence for an offense defined in article one hundred thirty ... of the penal law and the victim of such offense was under the age of eighteen at the time of such offense ... is released on parole or conditionally released pursuant to subdivision one or two of this section, the board shall require, as a mandatory condition of such release, that such sentenced offender shall refrain from knowingly entering into or upon any school grounds, as that term is defined in subdivision fourteen of section 220.00 of the penal law, or any other facility or institution primarily used for the care or treatment of persons under the age of eighteen while one or more of such persons under the age of eighteen are present ... Nothing in this subdivision shall be construed as restricting any lawful condition of supervision that may be imposed on such sentenced offender."
The record here establishes that respondent did not release petitioner on his CR date even though he was eligible for the same, because petitioner was unable to provide a proposed residence within the community that was outside of the Penal Law definition of "school grounds" (Tracy Affirmation, ¶ 5). The Court concludes that respondent had a rational basis for denying petitioner's release on his CR date and that its determination to do the same was not arbitrary and capricious or an abuse of discretion.
Petitioner's Transfer to a Residential Treatment Facility
Respondent states that even when petitioner reached his ME date of September 30, 2014, he was still unable to provide a suitable residence and as such, DOCCS's staff, acting on behalf of the Chairwoman of the Board of Parole, imposed a special condition pursuant to Penal Law § 70.45(3) that directed petitioner to transfer to a residential treatment facility until a residence consistent with Executive Law § 259–c (14) became available (Tracy Affirmation, ¶ 11).
Penal Law § 70.45, which provides conditions of post-release supervision, states, in relevant part:
"[t]he board of parole may impose as a condition of post-release supervision that for a period not exceeding six months immediately following release from the underlying term of imprisonment the person be transferred to and participate in the programs of a residential treatment facility as that term is defined in subdivision six of section two of the correction law. Upon release from the underlying term of imprisonment, the person shall be furnished with a written statement setting forth the conditions of post-release supervision in sufficient detail to provide for the person's conduct and supervision."
A residential treatment facility (RTF) is defined in Corrections Law § 2(6), as follows:
"A correctional facility consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for release on parole who intend to reside in or near that community when released."
Respondent argues that the placement of petitioner at an RTF was considered a necessary and appropriate condition of PRS because petitioner did not have appropriate housing, i.e. a proposed residence which was not in violation of the housing restrictions imposed by SARA, which condition respondent argues is lawful. The Court agrees (see Boss v. New York State Div. of Parole, 89 AD3d 1265 [3d Dept 2011] ) and rejects petitioner's contention that respondent failed to assist him with suitable housing. The record demonstrates that DOCCS staff worked with petitioner to investigate proposed residences in the community to determine if they lie beyond 1,000 feet of school grounds and if so, whether they will serve as appropriate residences given the other considerations parole officers must weigh when approving or disapproving a residence. Pursuant to Correction Law § 201(5) and 9 NYCRR § 8000.1(5), DOCCS is only obligated to assist inmates who are eligible for, or on community supervision to secure a residence; it does not have an affirmative duty to identify or secure such a residence.
The Court concludes that respondent's determination to send petitioner to an RTF when he had not secured suitable housing at the time of his release, was rationally based and was not arbitrary and capricious or an abuse of discretion.
Woodbourne Correctional Facility as an appropriately designated RTF
To the extent petitioner alleges that Woodbourne Correctional Facility was an inappropriately designated RTF, the Court concludes that his claim is untimely. Woodbourne Correctional Facility was designated an RTF pursuant to a 1984 amendment to 7 NYCRR § 100.50(c)(2). Accordingly, even if the Court were to give petitioner the benefit of an extended Statute of Limitations by deeming his claim as one seeking a declaratory judgment, his challenge to the 1984 amendment would be barred as more than six years have passed (see American Ind. Paper Mills Supply Co., Inc., v. County of Westchester, 16 AD3d 443 [2d Dept 2005] ; CPLR 213[1] ).
To the extent petitioner challenges the determination to transfer him to Woodbourne Correctional Facility, the Court concludes that his claim has no merit.
As set forth herein above, a residential treatment facility is defined as "a correctional facility consisting of a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or will soon be eligible for release on parole who intend to reside in or near that community when released" (Corrections Law § 2[6] ). Pursuant to Correction Law § 73, an RTF participant may be allowed to go outside during reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation, and the department shall be responsible for securing appropriate education, on the job training and employment for inmates transferred to the RTFs as well as the establishment of programs directed toward the rehabilitation and total reintegration into the community of persons transferred to an RTF ( Correction Law § 73[1], [2] and [ 3 ] ).
Petitioner argues that since his maximum expiration date, he has only been allowed to leave the prison grounds a handful of times, that he shares facilities with other inmates who are still serving their original prison sentences, that he is part of a work crew which contains inmates still serving their original prison sentences and that he is subject to the same institutional rules as other inmates and to disciplinary infractions for violating prison rules, such that his treatment is indistinguishable from other inmates (Petition, ¶ 35). Petitioner further argues that Woodbourne Correctional Facility is not an appropriate RTF for him because it is more than 100 miles from Manhattan, the community in which he intended to reside upon release (Petition, ¶ 36).
In opposition, respondent states that while Woodbourne Correctional Facility is a medium-security facility used for the general confinement of males ages 16 years and older, it has also been designated to serve as a residential treatment facility pursuant to 7 NYCRR § 100.50 (Tracy Affirmation, ¶ 13).
Respondent argues that Woodbourne RTF was the closest appropriate RTF to the community where petitioner intended to reside upon release (McGrath Affidavit, ¶ 16). Specifically, respondent argues that although there were RTFs located closer to Manhattan, practical limitations involving staffing, program availability and maximum occupancy restrictions were part of the driving force behind the decision regarding petitioner's placement at Woodbourne (McGrath Affidavit, ¶¶ 12–16).
Moreover, while at Woodbourne RTF, petitioner participated in a comprehensive program for the treatment and counseling of RTF residents, which program consisted of nine modules dedicated to therapeutic education and community reintegration (Schwebler Affidavit, ¶ 21). The program was delivered in an open-ended, modular group setting facilitated by Offender Rehabilitation Coordinators, and consists of lesson activities designed to enhance residents' skills and provide insight into their behaviors (id. ). Petitioner was paid to participate in said program, which is available only to RTF residents and actually pays them at a higher rate than regular DOCCS inmates are paid (Schwebler Affidavit, ¶¶ 15, 21). In addition, petitioner was being considered for the RTF Work Program, in which regular DOCCS inmates are not allowed to take part (Schwebler Affidavit, ¶ 16). The RTF Work Program takes place outside of the walls of the facility and pays the work crew participants at a rate higher than any DOCCS inmate receives (McGrath Affidavit, ¶¶ 20–21).
While Woodbourne RTF may not have been the optimal RTF for petitioner, as best the Court can tell from the Affirmation of Terrence X. Tracy, Esq., Counsel to the New York State Board of Parole, the Affidavit of Bradley Schwebler, a Supervising Offender Rehabilitation Coordinator with DOCCS, and the Affidavit of Anne Marie McGrath, an Assistant Commissioner for Regulation and Management with DOCCS, respondent has satisfied its obligations under the law. The Court concludes that respondent's determination to place petitioner at Woodbourne RTF upon his release was rationally based, particularly when faced with the fact that practical limitations involving staffing, program availability and maximum occupancy restrictions prohibited the placement of petitioner at RTFs closer to Manhattan. Its determination was not arbitrary and capricious or an abuse of discretion, and the petition, to the extent it alleges otherwise, must be denied.
Assistance to Petitioner Directed Toward Rehabiliation and Reintegration
Petitioner argues that respondent has failed to perform duties enjoined upon him by law, in that it has failed to provide petitioner with programs and opportunities directed toward his rehabilitation and total reintegration in to the community and, further, that it failed to assist petitioner with locating housing, choosing instead to keep him incarcerated in a medium-security prison (Petition, ¶ 43). Petitioner further argues that respondent put the onus of finding suitable housing on him (Petition, ¶ 45) and that given the conditions of his confinement at Woodbourne RTF, respondent has set him up to remain incarcerated until the end of his PRS, thereby effectively changing his incarceration period from 2½ years to 5½ years (Petition, ¶ 47).
At the outset, the Court notes that petitioner's argument about being set up to remain incarcerated until the end of his PRS is belied by petitioner's release from incarceration shortly after commencing this proceeding.
In addition, the Court agrees with respondent that pursuant to Correction Law § 201(5) and 9 NYCRR § 8000.1(5), DOCCS is only obligated to assist inmates who are eligible for, or on community supervision to secure a residence, and that it does not have an affirmative duty to identify or secure such a residence. Moreover, while petitioner was situated in a residential treatment facility, the management of his post-release supervision was assigned to the Department's Poughkeepsie Bureau for community supervision purposes, with parole officers investigating proposed residences in the community to determine if they lie outside of "school grounds" and if so, whether they will otherwise serve as appropriate residences (Tracy Affirmation, ¶ 14). Notably, petitioner concedes that respondent had proposed at least one housing option (Petition, ¶ 26). The fact that petitioner felt compelled to turn it down is of no bearing.
Finally, respondent argues that petitioner has received rehabilitative services in that he has taken part in the RTF transitional program, which is designed to provide therapeutic attention while aiding residents toward community placement (Schwebler Affidavit, ¶¶ 14, 21).
Based upon respondent's limited obligation to assist inmates in finding suitable housing and the record herein, which reflects that respondent provided such assistance to petitioner, as well as petitioner's participation in a transitional program offered at Woodbourne, the Court disagrees with petitioner that respondent failed to perform any duty enjoined upon it.
CONCLUSION
Based upon the foregoing, the Court finds no basis for granting the relief requested in the petition.
Accordingly, it is hereby
ORDERED AND ADJUDGED, that the petition is in all respects denied.
This constitutes the Judgment of this Court. The original Judgment is being returned to the attorney for respondent. A copy of the Judgment and the supporting papers have been delivered to the County Clerk for placement in the file. The signing of this Judgment, and delivery of a copy of the Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule with regard to filing, entry and Notice of Entry.
Papers Considered:
1. Notice of Petition, dated December 19, 2014; Verified Petition, verified by Jill K. Sanders, Esq., on December 19, 2014, with Exhibits A through P.
2. Answer, dated January 23, 201[5]; Affirmation of Joshua E. McMahon, AAG, dated January 23, 2015; Affirmation of Terrence X. Tracy, Esq., dated January 16, 2015, with Exhibits A through H; Affidavit of Bradley Schwebler, sworn to on January 23, 2015, with Exhibits A through P; and Affidavit of Anne Marie McGrath, sworn to on January 29, 2015, with Exhibits A through F.
3. Reply Affirmation of Jill K. Sanders, Esq., dated February 2, 2015, with Exhibit Q.
4. Post–Argument Affirmation, dated March 26, 2015; Memorandum of Law, signed by Jill K. Sanders, Esq. and dated March 26, 2014; and Verification of Miguel Gonzalez, Jr., sworn to March 10, 2015, with attachments.
5. Respondent's Post–Argument Memorandum of Law in Support of Answer, submitted by Joshua E. McMahon, AAG, and dated March 24, 2015.
6. Petitioner's Reply to Respondent's Post–Argument Memorandum of Law, submitted by Jill K. Sanders, Esq., and dated April 9, 2015.