Cole v. Smith
| Decision Date | 13 November 1981 |
| Citation | 446 N.Y.S.2d 682,84 A.D.2d 942 |
| Parties | In the Matter of the Application of Robert COLE, Appellant, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Robert Cole, pro se.
Robert Abrams, Atty. Gen. by David Edmunds, Buffalo, for respondent.
Before DILLON, P. J., and HANCOCK, DOERR, DENMAN and MOULE, JJ.
In June 1978, while incarcerated at Auburn Correctional Facility, disciplinary proceedings were brought against petitioner. After a Superintendent's Hearing these charges were dismissed and the Corrections Department agreed to expunge this incident from petitioner's records. Discovering that expungement had not taken place petitioner commenced an Article 78 proceeding in September 1978 seeking the relief that the Department had earlier promised. On the return date of the petition the court dismissed the proceedings on the assurance of the Attorney General that references to petitioner's disciplinary proceeding had in fact been expunged from his records. Apparently petitioner's records were not sanitized as promised.
In May 1979 the Department of Corrections approved a transfer of petitioner to Eastern Correctional Facility where he enrolled as a student at Ulster Community College, having received various tuition grants. However, before the educational semester ended, the Commissioner of Corrections transferred petitioner to Attica "because of his record of negative behavior prior to Eastern placement", a reference to the June 1978 incident. In March 1980 petitioner brought another Article 78 proceeding seeking to have the 1978 incident expunged from his records and a transfer back to Eastern. The court declared the expungement portion of the proceeding moot, noting that such had been done and denied petitioner's request for a transfer.
Unfortunately, the incident of which petitioner complains had not been expunged, which precipitated yet another Article 78 proceeding seeking expungement transfer to Eastern and reimbursement of various monies lost because of his transfer from Eastern to Attica. In this proceeding Special Term monitored the expungement of the June 1978 incident from petitioner's records but refused to grant the other relief sought. Petitioner appeals from the denial of this other relief.
Section 23 of the Corrections Law gives the Commissioner of Corrections "almost unbridled authority to transfer inmates from one facility to another" (Matter of Johnson v. Ward, 64 A.D.2d 186, 188, 409 N.Y.S.2d 670). In general, a prisoner has "no right to remain at any particular prison facility and no justifiable expectation that he would not be...
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