Petitioner, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS) since April 2013, commenced this CPLR Article 78 proceeding seeking to annul Respondent's determination, which affirmed the Temporary Release Committee's (TRC) [*2]denial of Petitioner's application to participate in the work release program. Respondent opposes the petition.

Petitioner is currently serving several concurrent indeterminate terms, with a controlling term of 4 to 12 years, having pleaded guilty on December 20, 2012 to "grand larceny in the first degree, a class B felony in violation of Penal Law § 155.42, grand larceny in the second degree as a hate crime (two counts), a class B felony in violation of Penal Law §§ 155.40 and 485.05, grand larceny in the second degree, a class C felony in violation of Penal Law § 155.40, criminal possession of a forged instrument in the second degree (two counts), a class D felony in violation of Penal Law § 170.25, offering a false instrument for filing in the first degree (ten counts), a class E felony in violation of Penal Law § 175.35, falsifying business records in the first degree (11 counts), a class E felony in violation of Penal Law § 175.10, and scheme to defraud in the first degree, a class E felony in violation of Penal Law § 190.65" (Matter of Giuliano, 117 AD3d 114, 115 [2d Dept 2014]). Specifically, while acting as a lawyer, Petitioner stole titles to real property and filed false instruments. "By virtue of his felony convictions, the [Petitioner] ceased to be an attorney and counselor-at-law pursuant to Judiciary Law § 90 (4) (a), and was automatically disbarred on December 20, 2012" (id., at 116). Petitioner was sentenced on February 25, 2013 and admitted to State prison on April 29, 2013.

A little over two months later, by application dated July 1, 2013, Petitioner sought to participate in work release, which would allow him outside of the prison for up to 14 hours per day. The TRC denied the application, stating :

Petitioner then commenced the instant proceeding seeking an order annulling Respondent's denial of his application for participation in work release, and directing his release from parole supervision.^[FN1] Petitioner contends that the determination was "made in violation of lawful procedure, was arbitrary and capricious, and constitutes an abuse of discretion" (Petition, page 1). Petitioner argues that Respondent's determination was irrational in that the TRC only considered his underlying offenses.

In opposition to the petition, Respondent asserts that, while Petitioner's crimes do not render him ineligible for participation in the Temporary Release Program, there is no automatic entitlement to participation. The work release program, Respondent asserts, is governed by Correction Law § 851 et. seq., and Petitioner's application was justifiably denied based on the instant offenses and Respondent's conclusion that Petitioner posed a threat to the community.

If an inmate meets certain eligibility requirements, sections 851 through 861 of the New York Correction Law provide for several types of temporary release, including work release, furlough, community service, leave of absence, industrial training, and educational leave (see Correctional Law § 851). In order for an inmate to be granted temporary release, Respondent must first determine that participation "is consistent with the safety of the community and the welfare of the applicant, and is consistent with rules and regulations of the department" (Correction Law § 855 [4]). The Correction Law further provides that "[p]articipation in a temporary release program shall be a privilege. Nothing contained in this article may be construed to confer upon any inmate the right to participate, or to continue to participate, in a temporary release program" (Correction Law § 855 [9]). Like so many other obligations of Respondent attendant to the care and custody of inmates, a determination to grant or deny work release to an eligible inmate rests within the sound discretion of prison officials.

In accordance with DOCCS regulations, convictions for certain violent felony offenses make an inmate ineligible for temporary release (see 7 NYCRR 1900.4 [c]). An eligible inmate's application is scored in accordance with the temporary release point system, consisting of 11 items, six based on criminal history and five on inmate behavior:

1.prior incarcerations;

2.prior or subsequent felony convictions;

3.prior or subsequent misdemeanor convictions;

4.outstanding warrants;

5.previous arrest and conviction or parole revocation;

6.nature of prior, current and subsequent convictions of crimes against the person;

7.institutional behavior;

8.program participation;

9.past 12- month discipline;

10.past 1-2 year discipline; and

11.temporary release record

An inmate whose application is denied may appeal that decision by submitting an appeal form to the Director of Central Office Temporary Release Programs (see 7 NYCRR 1900.6).

The Petition brings a challenge authorized by CPLR 7803 (3), namely, "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed." In the Third Department, a review of Respondent's denial of Petitioner's temporary release application "is limited to whether the determination violated any positive statutory requirement or denied a constitutional right of the inmate and whether [it] is affected by irrationality bordering on impropriety" (Matter of Lapetina v Fischer, 76 AD3d 722, 723 [3d Dept 2010] [internal quotation marks and citations omitted]). This standard appears to have been first adopted by the Third Department for temporary release cases in Matter of Rosati v Grenis, 50 AD2d 818 (3d Dept 1975) (denial of inmate furlough request). For its proposition, Matter of Rosati cites to People v Pierre, 34 AD2d 1000 (2d Dept 1970) which, in dismissing a defendant's appeal from an order denying a motion for resentence in a criminal matter, noted that in examining the merits of the matter, "[a]bsent a violation by the Board of Parole of a positive statutory requirement, a refusal to release a prisoner on parole is not judicially reviewable."

Petitioner scored 56 points on his application, exceeding the required score of 32 for work release eligibility. He argues that, while his crimes are substantial, they were non-violent and the victims of his crimes have been repaid. Petitioner has no prison disciplinary history and no prior criminal history. He acknowledges that he committed his crimes to support gambling and alcohol addictions, but attends counseling for both, including Alcohol and Substance Abuse Treatment Program (ASAT). Petitioner has worked successfully while incarcerated, most recently as a Teacher's Assistant, and has completed all required program requirements. He has earned a food handlers license and has two work release employment offers in the food industry. [*4]Petitioner concedes that he was able to commit his crimes because he had a law license, but argues that he is no longer a threat to the community. Rather, he argues that he is rehabilitated and wishes to work to help support his struggling family, his wife battling cancer, his teenage daughter with severe asthma, his father battling leukemia, and to give back to the community.

Based on the undisputed facts in the Petition, and the policy goals expressed for the temporary release programs, it would appear on first blush that Petitioner was a good candidate for daily work release. However, the TRC decision states that the nature of Petitioner's crimes warrant denial of his current application. The appeal decision concurs and states that denial is further warranted because Petitioner's "demonstrated disregard for others and their property renders him a public threat." However, as the appeal decision does not explain what threat Petitioner would pose to the community while employed in the food industry, or why Respondent cannot impose adequate restrictions to address its concerns, it is conclusory. By stating that Petitioner "may re-apply for work release on 07/2015," the Court is left to infer that both the TRC and Central Office are not convinced that Petitioner is ready for work release, despite his desire to help his family.

Nevertheless, while Respondent's decision is irrational in its conclusion that Petitioner would pose a threat to the public while employed in the food industry at a maximum of 14 hours per day outside prison, Respondent's denial is also premised on the nature of Petitioner's crimes. Ultimately, Respondent is entitled to deny work release based on the nature of the instant offense. Accordingly, Respondent's decision is not "affected by irrationality bordering on impropriety" (Matter of Lapetina v Fischer, 76 AD3d at 723). Nothing in the record would suggest that Respondent's decision was pre-judged, made with bias or malice, or failed to consider all the relevant statutory and regulatory criteria. Therefore, the determination cannot be disturbed.^[FN2] Accordingly, it is

ORDERED AND ADJUDGED that the Petition is dismissed, without costs.

This constitutes the Decision and Order/Judgment of the Court. The original Decision and Order/Judgment and the materials submitted by Respondent for in-camera inspection are being returned to counsel for Respondent. A copy of the Decision and Order/Judgment and the supporting papers have been delivered to the County Clerk for placement in the file. The signing of this Decision and Order/Judgment, and delivery of a copy of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.