IN RE: Eugene FRAZIER (2006)

Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 7, 2005 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying petitioner's grievance.

Petitioner is currently serving a prison term of 25 years to life upon his conviction of murder in the second degree.   During his incarceration, his program requirements were changed and it was recommended that he participate in a Residential Substance Abuse Treatment (hereinafter RSAT) program based upon a prior prison disciplinary violation involving drug use and his use of cocaine at the time of his arrest for murder.   Thereafter, petitioner successfully challenged the accuracy of the information contained in his institutional record and had the reference to his use of cocaine at the time of his arrest expunged therefrom.   Notwithstanding such expungement, correction officials continued to recommend that he participate in the RSAT program.   Petitioner filed a grievance concerning the same which was denied by the Central Office Review Committee.   He then commenced this CPLR article 78 proceeding and, following joinder of issue, the petition was dismissed by Supreme Court.   This appeal ensued.

We affirm.   Even though the reference to petitioner's cocaine use at the time of his arrest was expunged from his institutional record, he had a prior disciplinary infraction for drug use and an admitted history of drug abuse.   Inasmuch as petitioner's referral to the RSAT program was based on these factors, it had a rational basis and was not arbitrary or capricious (see Matter of McKethan v. Kafka, 31 A.D.3d 1078, 1079, 819 N.Y.S.2d 204 [2006] ).   Petitioner's remaining contentions have been considered and found to be without merit.

ORDERED that the judgment is affirmed, without costs.