This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of Randy S. Campney Sr., verified on April 6, 2007, and stamped as filed in the Franklin County Clerk's office on April 11, 2007. Petitioner, who is an inmate at the Bare Hill Correctional Facility, is challenging the denial of his application to participate in the DOCS temporary release program (work release). The Court issued an Order to Show Cause on April 13, 2007, and has received and reviewed respondent's Answer and Return, including in camera materials, verified on May 25, 2007, as well as respondent's Letter Memorandum of May 25, 2007. The Court has also received and reviewed petitioner's Reply thereto, stamped as filed in the Franklin County Clerk's office on June 5, 2007.

On June 19, 2003, the petitioner was sentenced in Albany County Court, as a second felony offender, to an indeterminate sentences of imprisonment of 2 to 4 years upon his conviction of the crime of Attempted Criminal Possession of a Weapon 3�. On November 1, 2006, the petitioner applied to participate in the DOCS temporary release program (work release). That application was denied by the Temporary Release Committee (TRC) at the Bare Hill Correctional Facility based upon the nature of the offense underlying petitioner's incarceration, his recidivist history and a parole violation. The TRC's explanation for the work release denial determination was as follows:

"THE INSTANT OFFENSE REPRESENTS YOUR 3RD NYS INCARCERATION AND INVOLVES YOU BEING FOUND IN POSSESSION OF AN OPERABLE ELECTRONIC STUN GUN. YOU WERE ON PAROLE AT THE TIME OF THIS OFFENSE. YOU ALSO HAVE A FELONY BURGLARY CONVICTION IN THE STATE OF NEW HAMPSHIRE. YOU MAY NOT RE-APPLY FOR WORK RELEASE UNTIL 11/2008."

"YOUR [petitioner's] MULTI-STATE CRIMINAL HISTORY DATES TO 1987 AND INCLUDES TWO PRIOR NYSDOCS TERMS. YOU WERE AFFORDED THE LENIENCY OF WORK RELEASE ON PRIOR TERMS BUT FAILED TO BENEFIT AS EVIDENCED BY CONTINUED CRIMINAL ACTIVITY. YOUR INSTANT OFFENSE, ATT CPW 3, INVOLVED YOUR POSSESSION OF AN OPERABLE ELECTRONIC GUN AND REPRESENTS A VIOLATION OF PAROLE. YOU ARE SERVING A CONCURRENT NH STATE TERM WITH THE I.O. YOUR ART [aggression replacement training] PROGRAM COMPLETION IS NOTED HOWEVER, YOUR CONTINUED CRIMINAL ACTIVITY AND FAILURE TO ADHERE TO THE RULES GOVERNING PAROLE SUPERVISION RENDERS YOU AN UNSUITABLE CANDIDATE FOR WORK RELEASE. THE INMATE MAY RE-APPLY FOR WORK RELEASE ON 11/2008."

The DOCS work release program, which constitutes one form of temporary release, ". . . means a program under which eligible inmates may be granted the privilege of leaving the premises of an institution for a period not exceeding fourteen hours in any day for the purpose of on-the-job training or employment, or for any matter necessary to the furtherance of any such purposes." Correction Law §851(3).

It is not disputed that the petitioner is an "eligible inmate" within the meaning of Correction Law §851(2) and was therefore entitled to apply to participate in the DOCS temporary release program. See Correction Law §855(2). Correction Law §855(4), provides that "[i]f the temporary release committee determines that a temporary release program for the applicant is consistent with the safety of the community and the welfare of the applicant, and is consistent with rules and regulations of the department, the committee, with the assistance of the of employees or unit designated by the commissioner . . . shall develop a suitable program of temporary release for the applicant." DOCS regulations include a relatively complex, eleven item point score system to initially evaluate applications for temporary release. Six of the items are based on criminal history and the remaining five on the applicant's behavior while in DOCS custody. See 7 NYCRR §1900.4(e). The petitioner's point score on the DOCS system was sufficient for his application to be referred to the TRC for disposition. Following an inmate's appearance before the TAC (mandatory for initial temporary release applicants but waiveable for others) the TRC decision is made. See 7 NYCRR §1900.4(l)(2). 7 NYCRR §1900.4(l)(2) directs the TRC, in making its decision, to center its attention on the applicant's point score, the interview with the applicant, "and other methods" of evaluation, including recommendations of professional staff. The regulation directs that the committee also take into account any factors which they find to be significant. "In general, the applicant's ability to profit from participation in temporary release should be weighed against whatever risk to the community or the program would be posed by his release." Id. "Inmates should be denied temporary release if their presence in the community . . . would pose an unwarranted threat to their own or public safety, if public reaction is such that the inmate's successful participation in the program would be made difficult and public acceptance of the temporary release program would be jeopardized, or if there is substantial evidence to indicate the inmate cannot successfully complete his requested temporary release [*3]program." 7 NYCRR §1900.4(l)(4).

An inmate's participation in a DOCS temporary release program, such as work release, is a privilege, not a right.See Correction Law §855(9). As such, a Court's review of a decision denying an inmates's application to participate in such a program is limited to a determination of whether the respondent violated any statutory requirement or constitutional right, or whether the denial determination was affected by irrationality bordering on impropriety. See Crispino v. Goord, 31 AD3d 1022, lv dis 7 NY3d 854, Abascal v. Roach, 22 AD3d 995 and Patterson v. Goord, 1 AD3d 845.

The petitioner does not allege a violation of any statutory/regulatory requirement directly associated with the processing of his application to participate in the work release program. Nor does he allege the violation of any constitutional right. Rather, the petition focuses on the assertion that petitioner has successfully completed all required therapeutic programming and ". . . that the only program left that would benefit the Petitioner in his rehabilitative efforts is participation in work release . . ." In this regard the petitioner alleges that he has been issued two Earned Eligibility Certificates, that he has been routinely given the highest of evaluations by DOCS staff, and that the New York State Division of Parole has acknowledged his satisfactory completion of all programming. Under these circumstances it is the petitioner's contention that the work release denial determination constituted "arbitrary and capricious" action as well as a breach of DOCS's ". . . duty to society and in particular the Petitioner in providing rehabilitative programs in accordance to Correctional [sic] Law §§ 136 and 851."

The petitioner's arguments to the contrary notwithstanding, the Court finds that the work release denial determination was not tainted by any violation of a statutory requirement. In this regard the Court notes that the petitioner's reference to Correction Law §136 is misplaced inasmuch as that statute addresses academic educational programming. Correction Law §137(1), however, provides, in relevant part, as follows:

"The commissioner [of correctional services] shall establish program and classification procedures designed to assure the complete study of the background and condition of each inmate in the care or custody of the department and the assignment of such inmate to a program that is most likely to be useful in assisting him to refrain from future violations of the law. Such procedures shall be incorporated in to the rules and regulations of the department and shall require among other things: consideration of the physical, mental and emotional condition of the inmate; consideration of his educational and vocational needs; [and] consideration of the danger he presents to the community or to other inmates . . ."

The exercise of a significant amount of discretion thus underlies the commissioner's statutory obligation to provide inmates with rehabilitative programming. The exercise of such discretion is particularly relevant where, as here, the rehabilitative programming sought by the inmate involves the temporary, unsupervised release of such inmate into the community. While the petitioner characterizes the work release denial determination as constituting a violation of the statutory requirement to provide inmates with rehabilitative programming, the Court finds that petitioner's challenge is more properly viewed as a challenge to the discretionary manner in which that statutory obligation has been [*4]discharged. In this regard it is again noted that the petitioner has not alleged any statutory/regulatory violation directly associated with the processing of his temporary release application.

After determining that the petitioner has failed to establish any statutory or constitutional violation, the Court finds no irrationality bordering on impropriety in the denial of the petitioner's application for work release based upon the nature of the crime underlying his incarceration, his recidivist history, and the fact that the crime underlying petitioner's incarceration was committed while on parole from a previous conviction. See Collins v. Goord, 24 AD3d 1048, and Abascal v. Maczek, 19 AD3d 913, lv den 5 NY3d 713, and Pena v. Roberts, 15 AD3d 707.

Based upon all of the above, it is, therefore, the decision of the Court and it is hereby

ADJUDGED, that the petition is dismissed.

Dated:September 7 , 2007 at

Indian Lake, New York.__________________________

S. Peter Feldstein

Acting Supreme Court Justice