Opinion
530574
11-25-2020
In the Matter of Wilson RODRIGUEZ, Appellant, v. Alicia SMITH–ROBERTS, as Director of Ministerial, Family and Volunteer Services, et al., Respondents.
Wilson Rodriguez, Attica, appellant pro se. Letitia James, Attorney General, Albany (Jennifer L. Clark of counsel), for respondents.
Wilson Rodriguez, Attica, appellant pro se.
Letitia James, Attorney General, Albany (Jennifer L. Clark of counsel), for respondents.
Before: Clark, J.P., Mulvey, Devine, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER Appeal from a judgment of the Supreme Court (Nichols, J.), entered November 22, 2019 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Corrections and Community Supervision denying petitioner's request to participate in the family reunion program.
Petitioner is serving an aggregate prison sentence of 37½ years to life due to his 1988 convictions for murder in the second degree and conspiracy in the second degree. The convictions stemmed from petitioner killing the wife of an acquaintance for $2,500. In October 2017, petitioner applied to participate in the family reunion program in order to visit with his wife. Due to the nature of his crime, petitioner is designated a Central Monitoring Case, subjecting his application to special review by the Central Office of the Department of Corrections and Community Supervision (see 7 NYCRR 220.2 [c][1][i]; Dept of Corr & Community Supervision Directive No. 0701 § III[A][4]; Dept of Corr & Community Supervision Directive No. 4500 § IV[C][1] ). Following such review, the application was denied. Upon petitioner's administrative appeal, the denial was upheld due to the nature of petitioner's crime, his failure to complete a sex offender counseling and treatment program to which he had been referred and the fact that his wife had been found responsible for contraband found in the possession of her grandson, an inmate at a different correctional facility. Petitioner then commenced this CPLR article 78 proceeding challenging that determination. Supreme Court dismissed the petition, finding the denial of the application was rational. Petitioner appeals.
We affirm. "[P]articipation in the family reunion program is a privilege and not a right, and the decision whether an inmate may participate is heavily discretionary and, as such, will be upheld if it has a rational basis" ( Matter of Garcia v. Morris, 140 A.D.3d 1441, 1441, 35 N.Y.S.3d 506 [2016] [internal quotation marks and citations omitted], lv denied 28 N.Y.3d 905, 2016 WL 6209065 [2016] ; accord Matter of Stevenson v. Smith, 175 A.D.3d 1680, 1681, 108 N.Y.S.3d 548 [2019], appeal dismissed and lv. denied 34 N.Y.3d 1198, 123 N.Y.S.3d 564, 146 N.E.3d 529 [2020] ). Moreover, "[c]ontrary to petitioner's assertion, ‘prior participation in the program does not guarantee that a future application will be approved’ " ( Matter of Marshall v. New York State Dept. of Corr. & Community Supervision, 167 A.D.3d 1115, 1116, 89 N.Y.S.3d 747 [2018], lv denied 33 N.Y.3d 901, 2019 WL 1460858 [2019], quoting Matter of Gordon v. Morris, 144 A.D.3d 1338, 1338–1339, 40 N.Y.S.3d 799 [2016], lv denied 28 N.Y.3d 914, 2017 WL 580593 [2017] ; see Matter of Garcia v. Morris, 140 A.D.3d at 1441, 35 N.Y.S.3d 506 ). Here, the nature of petitioner's crime and his failure to participate in the sex offender counseling and treatment program were pertinent factors in considering his application (see Matter of Gordon v. Morris, 144 A.D.3d at 1339, 40 N.Y.S.3d 799 ; Matter of Rosas v. Baker, 1 A.D.3d 665, 666, 766 N.Y.S.2d 612 [2003], lv denied 1 N.Y.3d 508, 776 N.Y.S.2d 540, 808 N.E.2d 860 [2004] ). Further, petitioner's wife had her visiting privileges suspended for six months after being found responsible for introducing contraband into a facility during an April 2017 visit with her grandson. In light of the foregoing, we find a rational basis for the denial of petitioner's application to participate in the family reunion program (see e.g. Matter of Loucks v. Annucci, 175 A.D.3d 775, 776–777, 105 N.Y.S.3d 726 [2019] ; Matter of Marshall v. New York State Dept. of Corr. & Community Supervision, 167 A.D.3d at 1117, 89 N.Y.S.3d 747 ).
Although petitioner contends that he had been improperly referred to the sex offender counseling and treatment program, the proper vehicle for challenging the referral is the inmate grievance program (see 7 NYCRR 701.2 [a]; see generally Matter of Hawes v. Fischer, 119 A.D.3d 1304, 1305, 990 N.Y.S.2d 367 [2014] ).
Petitioner's claim that the Central Office erred in not considering evidence of his wife's innocence regarding the suspension of her visiting privileges is without merit. Petitioner has no standing to challenge the determination suspending his wife's visiting privileges (see Matter of Carter v. Rock, 77 A.D.3d 1005, 1005, 908 N.Y.S.2d 754 [2010] ).
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Clark, J.P., Mulvey, Devine, Aarons and Pritzker, JJ., concur.
ORDERED that the judgment is affirmed, without costs.