DECISION/ORDER

The petitioner Timothy Bush brings this Article 78 proceeding challenging that term of his parole — which prohibits him from having any contact with individuals under the age of eighteen (18) years. The petitioner requests that this condition of his parole be removed, as well as the restrictions imposed by the Sex Offender Registration Act ("SARA"). The petitioner also requests that the Department of Community and Supervision's Directive 9601 be modified to include a parolee's biological grandchildren. [*2]The respondent opposes, and argues that the petitioner has failed to exhaust his administrative remedies and that his petition fails to state a cause of action upon which relief may be granted.

In his petition, the petitioner describes how prior to his release he attempted to gain permission to have contact with his grandson, by filing the requested Directive 9601. Following numerous grievances, it was finally determined that the petitioner could not utilize DR 9601 to obtain contact with his grandson. The petitioner argues that he used the administrative remedy supplied him by his parole officer, Directive 9601, only to be denied, and he has no other remedy. The petitioner further argues that the determination of the parole board was arbitrary, capricious and so irrational as to border on impropriety in that he has no remedy, and in that it imposed the condition that prevents him from having an contact with his eight year old grandson. The petitioner further argues that he should not have to abide by the directives set out in SARA — particularly that he have no internet contact with minors — because his victim was not under the age of 18. The petitioner also argues that the parole board failed to apply the proper statutory factors, or misapplied them, when imposing the parole release condition that he not have contact with anyone under the age of 18.^[FN1] Lastly, the petitioner argues that the restrictions are not justified under his Department of Correction and Community Supervision Risk Assessment.

For the reasons that follow the Court denies the petitioner's Article 78 petition in its entirety.

It is well established that a Parole Board is vested with discretion to determine the conditions upon which an inmate is released and its decision in that regard is not subject to judicial review if made in accordance with the law (Executive Law 259-c [2]; 259-i[5]; Matter of Boehm v Evans, 79 AD3d 1445, 1446 [3d Dept 2010]). Parole conditions which are "rationally related to the inmate's criminal history, past conduct and future chances of recidivism" are not arbitrary and capricious (Matter of Maldonado v New York State Div of Parole, 87 AD3d 1231 [3d Dept 2011]). "The court ultimately determines a petitioner's SORA risk level, and is not bound by the Board's recommendation, from which it may depart in considering the record"(People v Lashaway, 25 NY3d 478, 483 [2015]).

The petitioner has already appealed the determination that found him to be a Level Three Sex Offender, and the classification was upheld in People v Bush, 172 AD3d 1827 (3d Dept 2019). To the extent that the petitioner attempts to re-argue the designation, the issue has already been finally determined.

Executive Law 259-c (14) provides, in relevant part, that "where a person serving a sentence for an offense defined in [Penal Law articles 130, 135 or 263 or Penal Law 255.25, 255.26, or 255.27] and the victim of the offense is under the age of [18] at the time of the offense or such person has been designated a level three sex offender pursuant to [Correction Law 168-1(6)], is released on parole or conditionally released...the Board of Parole shall require, as a mandatory condition of said release, that such sentenced offender shall refrain from knowingly entering into or upon school grounds....." The statute also contains a provision that the same person shall not use the internet to communicate with individuals under the age of eighteen. SARA was amended in 2005 to specifically encompass level three sex offenders in the radius limitation of the statute. The Court is required to read and apply the plain language of the statute (People ex rel. Negron v Superintendent, Woodbourne Corr. Fac., 170 AD3d 12 [3d Dept 2019]), and with that plain reading, this Court finds that it does apply to this Level Three Sex Offender. While the petitioner argues he is exempt because his victim was over the age of 18, this Court rejects that distinction. Pursuant to Correction Law 168-h(2), a sex offender who has been classified a level three offender "will remain classified as such for life......the designation will remain upon that person for all other programs, benefits, activities and limitations for the duration of his or her life (People ex rel Winters v O'Meara, 63 Misc 3d 1208[A] [Sup Ct, St. Lawrence Co 2019]). The Legislature could have excluded individual risk level three sex offenders from SARA restrictions if their high risk was limited to adults, "we conclude that it acted rationally in not doing so" given the lack of certainty in making such an assessment and the serious nature of sex offenses against children (People ex rel Johnson v Superintendent, Adirondack Corrections Facility, 174 AD3d 992 [3d Dept 2019], citing People v Know, 12 NY3d 60 [2019]). Because the petitioner has the Level Three Sex Offender designation, he is subject to SARA, regardless of the age of his victim at the time of the sexual offense.

The Court has reviewed the petitioner's conditions of release, those dated June 28, 2019 and July 3, 2019. The special condition of which petitioner complains is imposed at SC-64 is "I will not be in contact with [*3]persons under the age of eighteen (18) unless I have prior written approval from my Parole Officer...." The Court agrees that the petitioner was obligated to contact his parole officer with his specific request, and according to the petition, it appears he did just that prior to his release. There is no prohibition against the petitioner making the request of his parole officer, considering that he now under parole supervision.

To the extent that the petitioner complains that the special parole condition prohibiting contact with his grandson is arbitrary, capricious and bordering on impropriety, the Court disagrees. Inmates have no federal or state constitutional rights to be released to parole supervision before serving their entire sentence. Special conditions may be imposed upon a parolee's right to release as long as they are rationally related to the inmate's past conduct and future chance of recidivism (Williams v Department of Corrections and Community Supervision, 136 AD3d 147 [1st Dept 2016]). The Court has reviewed the record and finds that the determination of the parole board is supported by the record, and there has been no abuse of discretion.

Accordingly, it is

ORDERED, that the Article 78 petition is denied.

This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the Attorney General. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.