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Matter of McClane v Baker 2011 NY Slip Op 33049(U) November 16, 2011 Sup Ct, Albany County Docket Number: 5253-11 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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STATE OF NEW YORK SUPREME COURT

COUNTY OF ALBANY

In Thc bliltter of BRIAN MCCLANE, Petitioner, -againstSHIRLEY R. BAKER, COORDINATOR, MINISTERIAL AND FAMILY SERVICES, Respondents, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 0 1- 1 I-ST2945 Index No. 5253- 1 1 Appearances: Brian McClane Inmate No. 02-A-5095 Petitioner, Pro Se Clinton Correctional Facility P.O. Box 201 1 Dannemora, NY 12929 Eric T. Schneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (Cathy Y. Sheehan, Assistant Attorney General of Counsel)

DECISION/ORDER/JUDGMENT
George B. Ceresia, Jr., Justice The petitioner, an inmate at Clinton Correctional Facility, commenced the instant CPLR Article 78 proceeding to review a determinntinn which dcnicd his application to participate in the Family Reunion Program ("FRP"). The petitioner maintains that he is

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eligible for the program undu Department of Correctional Services and Community Supervision ("DOCCS") Directive 4500. He indicates that he wishes to visit with his mother, father and two aunts. He maintains that he has a right to unite with his family and loved ones in just the same manner as other inmates. He maintains that he has not had any problcms interacting with other inmates during the course of his incarceration, and there is no reason to believe that any problems would arise if he is permitted to participate in FRP. Petitioner's application was initially denied by the facility Superintendent on October
29, 2010. The Superintendent indicated that "[the petitioner] needs to complete the sex

offender program per central office." The petitioner appealed the determination, which was denied on March 25, 2011 by respondent Baker in an appeals decision which recites as follows:

"I have completed my review of your appeal of the denial of your application to participate in the Family Reunion Program. Our records indicate that your application was subject to special review to determine your eligibility for the program under Department Directive # 4500, Section C.3,4, and 6.
"After careful consideration, I am not inclined to render a favorable decision to your appeal for the following reason: "Your records depict horrendous crimes, including, pedophilia, and incest. The victim, your eight month old daughter, was also subjected to child pornography and photographing her unclothed. "Inmates convicted of such crimes as yours, normally become vulnerable to victimization in the correction setting. Therefore, I am of the opinion that you are not an ideal candidate for the FRP as your participation may lead to an incident that could seriously jeopardize not only your safety, but also, the safety and security of your visitor(s), other inmates and their visitors, the FRP, it.. sitc, and ths good ordcr of th,: fitcilitj ,"

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It is well settled that participation in the FRP is a privilege, not a right, and the decision of whether to grant an inmate's request to participate is "`heavily discretionary'"
(Matter of Defeo v New York State Department of Correctional Services, 56 AD3d 886,887

[3rdDept., 20081, quoting Matter of Doe v Coughlin, 71 NY2d 48,55-56 [ 19871, cert denied 488 US 879 [ 19881; Matter o f Philips v Commissioner of Correctional Semi-res, 65 AD3d 1407 [3rdDept., 20091; Matter ofGeorniou v Daniel, 21 AD3d 1230,1231 [3rdDept., 20051, Matter of Cabassa v Goord, 40 AD3d 1281, 1281 [3rdDept., 20071; Matter of Stacione v Baker, 24 AD3d 843,843 [3rdDept., 20051). In reviewing an application to participate in the Family Reunion Program, DOCCS must consider and balance a number of factors (see 7 NYCRR Part 220). "AS long as the [Family Reunion Program] is implemented in a reasonable manner consistent with the inmate's status as a prisoner and the legitimate operational considerations of the facility, it will withstand judicial scrutiny"(Matterof Cliff v Bradv, 290 AD2d 895, 896 [3d Dept., 20021, citations and internal quotation marks omitted]).

As stated in DOCCS regulation 0 220.2 (c) (1) (iii):
Any inmate ha4 the rirht tr, npply fnr pnrticiptinn in thc family reunion program (FRP), if hisher facility of residence offers the program. Eligibility is to be determined during processing, not prior thereto. [I
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(c) Special reviewhnmate. (1) A special review will be conducted which will include consideration of the specifics of the crime, the age of the inmate at the time of the offense, progress in programs, custodial adjustment, victim impact and the entire case record. A special review to determine eligibility will be conducted if an inmate: [I (iii) has been convicted of heinous or unusual crimes or it if appears that the inmate is a sex offender" (see 7 NYCRR 220.2 [c] [ 11 [iii], emphasis supplied) 3

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DOCCS Directive 4500, which governs the FRP program recites: "Special review/Inmate: A special review will be conducted which will include consideration of the specifics of the crime, the age of the inmate at the time of the offense, progress in programs, custodial adjustment, victim impact and the entire case record. A special review to determine eligibility will be conducted if an inmate: [I 3. Has been convicted of heinous or unusual crime or f i t appears that the inmate is a sex offender." (DOCCS Directive 4500,111, C, 3, emphasis supplied)

The foregoing has been consistently upheld by the Courts. "Among the factors to be considered [in considering an application for FRP] is the nature ofthe petitioner'sconviction, particularly where it was heinous or unusual" ~ . . . l ~ u ii ~ r I'liilips
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Lu~iuiii~~i~w~ of

Correctional Services, 65 AD3d 1407, 1408 [3rd Dept., 20091, citing 7 NYCRR 220.1 et seq.; Matter of Doe v Counhlin, 71 NY2d at 55 n 1; Matter of Defeo v New York State Dept. of Correctional Servs., 56 AD3d 886, 887 [2008]). Thus, it appears that special review of the petitioner's application for FRP was proper. Under the particular circumstances here, the Court cannot fault the reasoning or factual basis for respondent's determination (see Matter

of Philips v Commissioner of Correctional Services, supra).
The Court has reviewed and considered petitioner's remaining arguments and contentions and finds them to be without mcrit. The Caurt finds that the dctennination was not made in violation of lawful procedure, is not affected by an error of law, and is not irrational, arbitrary and capricious, or an abuse of discretion. The Court concludes that the petition must be dismissed.

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Accordingly it is
ORDERED and ADJUDGED, that the petition be and hereby is dismissed.

This shall constitute the decision, order and judgment of the Court. The original decision/order/judgment is returned to the attorney for the respondents. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this

decision/order/judgment does not constitute entry or filing under CPLR Rule 2220. Counsel

is not relieved from the applicable provisions of that rule respecting filing, entry and notice
of entry.
ENTER

Dated:

November

/6

,201 1
George B. Ceresia, Jr. Supreme Court Justice

Troy, New York Papers Considered:
1. 2.

Order To Show Cause dated August 1 1,20 1 1, Petition, Supporting Papers and Exhibits Answer dated October 13,201 1, Supporting Papers and Exhibits

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