IN RE: James MERRILL (2000)

Appeal from a judgment of the Supreme Court (Malone Jr., J.), entered November 12, 1999 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent withholding petitioner's good time allowance.

Petitioner, who is serving an indeterminate prison sentence of 2 1/212 to 5 years imposed upon his conviction of sexual abuse in the first degree, commenced this CPLR article 78 proceeding to challenge respondent's determination which, upon administrative appeal, affirmed a decision of the facility Time Allowance Committee to withhold petitioner's good time allowance based upon his failure to participate in an approved sex offender program.   Supreme Court dismissed the petition and petitioner appeals.

 A decision to withhold good time allowance made in accordance with the law is not subject to review (see, Matter of Staples v. Goord, 263 A.D.2d 943, 695 N.Y.S.2d 190, lv. denied 94 N.Y.2d 755, 701 N.Y.S.2d 711, 723 N.E.2d 566).   This Court has consistently held that where, as here, an inmate failed to accept adequate treatment for the behavior that resulted in the incarceration, a decision to withhold good time allowance is not irrational (see, e.g., Matter of Burke v. Goord, 273 A.D.2d 575, 710 N.Y.S.2d 136;  Matter of Jones v. Coombe, 269 A.D.2d 632, 703 N.Y.S.2d 554, lv. denied 95 N.Y.2d 755, 712 N.Y.S.2d 447, 734 N.E.2d 759).   The record discloses that, contrary to petitioner's claim, the decision was made upon the required review of petitioner's entire institutional experience and the fact that petitioner's good time allowance was withheld for his failure to obtain adequate treatment for the very problem that resulted in his incarceration does not establish that the decision was based upon the application of an automatic rule (see, Matter of Coleman v. Boyle, 270 A.D.2d 739, 705 N.Y.S.2d 419, lv. denied 95 N.Y.2d 758, 713 N.Y.S.2d 522, 735 N.E.2d 1287).   That petitioner failed to participate in a recommended program, rather than an assigned program, does not affect the validity of the decision to withhold good time allowance (see, Matter of Burke v. Goord, supra).   Petitioner's remaining claims have been considered and are lacking in merit.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.