Opinion
July 8, 1970
Appeal from an order of the Supreme Court at Special Term, entered April 16, 1969 in Clinton County, which denied petitioner's application for a so-called "Writ of Declaratory Judgment". The appellant contends that by virtue of sections 230-a Correct. and 803 Correct. of the Correction Law he is entitled to earn 10 days credit each month against the maximum of his sentence. Under the circumstances we find nothing in the commissioner's action which mandates judicial interference. He has used the discretionary power vested in him by the Legislature not to implement for the mentally ill prisoners under his care a voluntary incentive program (Correction Law, art. 24), which contains serious detriments for the prisoner if violation of the program takes place. Appellant is still entitled to receive the benefits of section 230 without the risks involved that would accrue if he waived these rights and he is being treated in the same manner as all others similarly situated under the jurisdiction of the Department of Correction (see Matter of Cook v. Lawes, 247 App. Div. 735, 736, affd. 271 N.Y. 574; Matter of Keith v. Thayer, 245 App. Div. 188; People ex rel. Ascher v. Lawes, 243 App. Div. 578). Order affirmed, without costs. Herlihy, P.J., Reynolds, Aulisi, Staley, Jr., and Greenblott, JJ., concur in memorandum by Aulisi, J.