IN RE: Theodore F. GIVEN Jr.

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Theodore F. GIVEN Jr., Appellant, v. Glenn S. GOORD, as Commissioner of Correctional Services, Respondent.

Decided: May 29, 2008

Before:  MERCURE, J.P., CARPINELLO, LAHTINEN, KANE and KAVANAGH, JJ. Theodore F. Given Jr., Albion, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (David M. Finkelstein of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered November 29, 2006 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 credit.

Petitioner is currently serving a prison sentence of 12 1/212 to 25 years upon his conviction of rape in the first degree and is required to participate in the sex offender counseling program while incarcerated.   In 2003, petitioner was removed from the program for poor performance, participation or progress.   In September 2005, petitioner re-enrolled in the program but was soon placed on probation status based on, among other things, his lack of honesty, insight and empathy.   The following month, his probation status was continued due to the need for further assessment.   Thereafter, the Time Allowance Committee recommended withholding petitioner's good time credit and that recommendation was confirmed by the facility superintendent and, ultimately, by respondent.   Petitioner then commenced this CPLR article 78 proceeding.   Supreme Court dismissed the petition and petitioner appeals.

We affirm.   Respondent's discretionary determination to grant or withhold good time credit is based on a review of an inmate's entire institutional record and is not subject to judicial review as long as it is made in accordance with the law (see Correction Law § 803[4];  Matter of Bolster v. Goord, 300 A.D.2d 711, 712, 752 N.Y.S.2d 403 [2002] ).   Here, petitioner's failure to successfully participate in the sex offender counseling program provides a rational basis for respondent's decision as it demonstrates petitioner's refusal to address the very conduct that resulted in his incarceration (see Matter of Martin v. Goord, 45 A.D.3d 992, 994, 845 N.Y.S.2d 524 [2007],appeal dismissed 10 N.Y.3d 756, 853 N.Y.S.2d 539, 883 N.E.2d 365 [2008];  Matter of Jones v. Coombe, 269 A.D.2d 632, 703 N.Y.S.2d 554 [2000], lv. denied 95 N.Y.2d 755, 712 N.Y.S.2d 447, 734 N.E.2d 759 [2000] ).

Petitioner's remaining contentions, including his due process claims, have been reviewed and found to be without merit.

ORDERED that the judgment is affirmed, without costs.

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