IN RE: John E. HARRIS

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

IN RE: John E. HARRIS, Appellant, v. James V. GRANGER, as Director of the Office of Guidance and Counseling, et al., Respondents.

Decided: June 22, 2006

Before:  MERCURE, J.P., CREW III, PETERS, ROSE and LAHTINEN, JJ. John E. Harris, Ogdensburg, appellant pro se. Eliot Spitzer, Attorney General, Albany (Edward Lindner of counsel), for respondents.

Appeal from a judgment of the Supreme Court (Benza, J.), entered October 29, 2004 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner is currently serving a prison sentence of 20 years to life in connection with his plea of guilty to the crimes of murder and attempted murder.   An inmate counselor advised petitioner that he was required to participate in a sex offender treatment program based upon the sexual misconduct underlying his murder conviction.   Respondents confirmed petitioner's placement in sex offender treatment.   Petitioner thereafter commenced this proceeding pursuant to CPLR article 78 seeking review of respondents' determination.   Supreme Court subsequently dismissed petitioner's application finding that he failed to comply with the service provisions set forth in the order to show cause and, in any event, has not as yet suffered an injury and the recommendation to complete a sex offender program was not irrational.

We affirm.   Petitioner's failure to address the issue of improper service of the order to show cause must be deemed an abandonment of that issue (see Matter of Braswell v. New York City Transit Auth., 306 A.D.2d 709, 711, 760 N.Y.S.2d 695 [2003], lv. denied 100 N.Y.2d 515, 769 N.Y.S.2d 201, 801 N.E.2d 422 [2003] ), requiring an affirmance of Supreme Court's judgment (see Matter of Robinson v. Goord, 21 A.D.3d 1150, 1151, 800 N.Y.S.2d 786 [2005] ).   Nevertheless, after review of the record we agree with Supreme Court that petitioner's application was premature (see Matter of Rushin v. Commissioner of N.Y. State Dept. of Correctional Servs., 235 A.D.2d 891, 891-892, 653 N.Y.S.2d 171 [1997] ) and that the recommendation that petitioner participate in a sex offender program was rational (see Matter of Bolster v. Goord, 300 A.D.2d 711, 713, 752 N.Y.S.2d 403 [2002] ).

ORDERED that the judgment is affirmed, without costs.

LAHTINEN, J.

MERCURE, J.P., CREW III, PETERS and ROSE, JJ., concur.

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