IN RE: Howard J. HARRIS (2005)

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered May 20, 2004 in Albany 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 his grievance.

In December 1999, petitioner successfully completed a sex offender counseling program while an inmate at Gowanda Correctional Facility in Cattaraugus County.   His certificate of successful completion was revoked in April 2003, however, when it was discovered that petitioner had ordered a pornographic magazine through the mail.   Petitioner filed a grievance challenging the revocation of his successful completion status.   Following the denial of his grievance and an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.   Supreme Court dismissed the petition, prompting this appeal.

When petitioner entered the sex offender counseling program, he signed rules that specifically prohibited him from possessing pornographic material “at any time.”   The record reveals that all participants in the program are informed that they are prohibited from possessing pornographic materials not only during the program, but for the duration of their incarceration.   In addition, all participants are warned that possession of pornography after completion of the program will be considered a relapse and will require that they successfully complete the program again.   As it is apparent that the prohibition and the penalty were clearly indicated, the decision to revoke petitioner's successful completion status and to require him to reenter the program upon the discovery of his relapse was not arbitrary and capricious (see Matter of Dallio v. Goord, 15 A.D.3d 803, 790 N.Y.S.2d 614 [2005];  see also Matter of Gibbs v. Miller, 10 A.D.3d 785, 787, 781 N.Y.S.2d 804 [2004];  Matter of Harty v. Goord, 3 A.D.3d 701, 702, 769 N.Y.S.2d 915 [2004] ).

Petitioner's remaining contentions have been considered and deemed to be without merit.

ORDERED that the judgment is affirmed, without costs.

MERCURE, J.

CARDONA P.J., CREW III, CARPINELLO and MUGGLIN, JJ., concur.