Supreme Court, Appellate Division, Third Department, New York.
IN RE: Gerald BURNETT, Appellant, v. DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Decided: March 11, 2021
Before: Garry, P.J., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.
Gerald Burnett, Malone, appellant pro se. Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Zwack, J.), entered March 16, 2020 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Corrections and Community Supervision withholding petitioner's good time allowance.
Petitioner is serving multiple sentences for various 2013 convictions. Petitioner appeared before the Time Allowance Committee for an assessment of whether any good time would apply toward the reduction of his sentence. The Committee recommended that all the available good time be withheld because, in 2015, petitioner refused to participate in a sex offender counseling and treatment program. That recommendation was affirmed by the Commissioner of Corrections and Community Supervision. Petitioner then commenced this CPLR article 78 proceeding challenging the determination. Following joinder of issue, Supreme Court dismissed the petition, and this appeal ensued.
We affirm. “The determination to withhold some or all of an inmate's good time credit is a discretionary one, and will be upheld if made in accordance with law and premised upon a review of the inmate's entire institutional record” (Matter of Thomas v. Fischer, 106 A.D.3d 1343, 1344, 966 N.Y.S.2d 254  [citation omitted]; see Matter of Fowler v. Fischer, 98 A.D.3d 1212, 1212, 951 N.Y.S.2d 262 ). The record establishes that petitioner refused to participate in a mandatory sex offender treatment program despite being informed that such refusal could result in the loss of good time credit. Inasmuch as good time allowance may be withheld for failure to engage in an assigned program (see Correction Law § 803[a]), a rational basis exists for the decision to withhold petitioner's good time (see Matter of Fowler v. Fischer, 98 A.D.3d at 1212–1213, 951 N.Y.S.2d 262; Matter of Torres v. Dubray, 64 A.D.3d 1027, 1028, 882 N.Y.S.2d 761 , lv denied 13 N.Y.3d 709, 2009 WL 3379014 ; Matter of Brown v. Napoli, 62 A.D.3d 1106, 1107, 879 N.Y.S.2d 233 , lv denied 13 N.Y.3d 706, 2009 WL 2998200 ). To the extent that petitioner seeks to challenge the propriety of the 2015 decision that he participate in a sex offender treatment program, this was not a matter properly before the Committee, but is more appropriately the subject of the inmate grievance procedure (see e.g. Matter of Smith v. Department of Corr. & Community Supervision, 142 A.D.3d 1212, 1213, 37 N.Y.S.3d 457 ; Matter of Torres v. Fischer, 73 A.D.3d 1355, 1356, 899 N.Y.S.2d 918 ; Matter of Martin v. Goord, 45 A.D.3d 992, 993, 845 N.Y.S.2d 524 , appeal dismissed 10 N.Y.3d 756, 853 N.Y.S.2d 539, 883 N.E.2d 365 ). Petitioner's remaining contention is without merit.
ORDERED that the judgment is affirmed, without costs.
Garry, P.J., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ., concur.
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