IN RE: George PHILIPS (2009)

Appeal from a judgment of the Supreme Court (McDonough, J.), entered October 23, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying his request to participate in the family reunion program.

Petitioner, currently incarcerated, was convicted of various counts of rape and sodomy resulting from separate incidents in which he assaulted four teenage girls, three of them at gunpoint (People v. Philips, 30 A.D.3d 620, 818 N.Y.S.2d 227 [2006], lvs. denied 8 N.Y.3d 949, 836 N.Y.S.2d 559, 868 N.E.2d 242, 8 N.Y.3d 989, 838 N.Y.S.2d 492, 869 N.E.2d 668 [2007] ).   In August 2007, he applied to participate in the family reunion program at Eastern Correctional Facility in Ulster County and the application, upon recommendation by facility staff, was denied based upon the nature of petitioner's offenses.   After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.   Supreme Court dismissed the petition and this appeal ensued.

 We affirm.   Participation in the family reunion program is not a right, but a privilege, and the decision about whether an inmate may participate is “heavily discretionary” and will be upheld if it has a rational basis (Matter of Doe v. Coughlin, 71 N.Y.2d 48, 56, 523 N.Y.S.2d 782, 518 N.E.2d 536 [1987], cert. denied 488 U.S. 879, 109 S.Ct. 196, 102 L.Ed.2d 166 [1988];  see Matter of Williamson v. Nuttall, 35 A.D.3d 926, 927, 825 N.Y.S.2d 802 [2006];  Matter of Stacione v. Baker, 24 A.D.3d 843, 843, 804 N.Y.S.2d 278 [2005] ).   Among the factors to be considered is the nature of the petitioner's conviction, particularly where it was heinous or unusual (see 7 NYCRR 220.1 et seq.;  Matter of Doe v. Coughlin, 71 N.Y.2d at 55 n. 1, 523 N.Y.S.2d 782, 518 N.E.2d 536;  Matter of Defeo v. New York State Dept. of Correctional Servs., 56 A.D.3d 886, 887, 867 N.Y.S.2d 242 [2008] ).   Inasmuch as the record demonstrates that respondent considered the appropriate factors, including petitioner's acceptable disciplinary record and participation in counseling programs, we find that the denial based upon the brutal nature of petitioner's crimes was “completely rational” and, thus, Supreme Court properly dismissed the petition (Matter of Defeo v. New York State Dept. of Correctional Servs., 56 A.D.3d at 887, 867 N.Y.S.2d 242;  see Matter of Payne v. Goord, 12 A.D.3d 733, 734-735, 783 N.Y.S.2d 702 [2004] ).   We reject petitioner's argument that the reasons given for the denial of his 2006 application compel any particular result here, inasmuch as “each application is subjected to a new discretionary review” (Matter of Doe v. Coughlin, 71 N.Y.2d at 56, 523 N.Y.S.2d 782, 518 N.E.2d 536).

We have considered petitioner's remaining contentions and find them to be without merit.

ORDERED that the judgment is affirmed, without costs.