DeCapria v. Annucci

• Decision Date: 10 November 2016
• Citation: DeCapria v. Annucci, 2016 NY Slip Op 7385, 144 A.D.3d 1305, 40 N.Y.S.3d 302(Mem) (N.Y. App. Div. 2016)
• Parties: In the Matter of Virginia DeCAPRIA, Appellant, v. Anthony J. ANNUCCI, as Commissioner of Corrections and Community Supervision, Respondent.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1305

40 N.Y.S.3d 302 (Mem)

2016 N.Y. Slip Op. 07385

In the Matter of Virginia DeCAPRIA, Appellant,

v.Anthony J. ANNUCCI, as Commissioner of Corrections and Community Supervision, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 10, 2016.

Virginia DeCapria, Bedford Hills, appellantpro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.

Appeal from a judgment of the Supreme Court(Zwack, J.), entered January 21, 2016 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Department of Corrections and Community Supervision denying her application to participate in a temporary work release program.

Petitioner, a prison inmate serving a prison sentence for her conviction of two felonies arising out of her theft of approximately $500,000 from the Charlton Fire District, applied to participate in a temporary work release program.The facility's Temporary Release Committee denied petitioner's application, citing the nature of the offenses for which she is incarcerated.Upon administrative review, the Temporary Release Committee's determination was upheld based upon petitioner's disregard for the public fisc, which rendered her a risk to public safety and property and an unsuitable candidate for work release notwithstanding her positive programming and custodial adjustment.Thereafter, petitioner commenced this CPLR article 78 proceeding challenging this determination.Supreme Court dismissed the petition, and this appeal by petitioner ensued.

We affirm.“Participation in a temporary release program is not a right, but a privilege and, thus, our review 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 A.D.3d 722, 723, 906 N.Y.S.2d 648[2010][internal quotation marks, brackets and citations omitted];seeMatter of Crispino v. Goord, 31 A.D.3d 1022, 1023, 818 N.Y.S.2d 357[2006], lv. denied7 N.Y.3d 854, 824 N.Y.S.2d 592, 857 N.E.2d 1123[2006] ).The record reflects that, while serving as the treasurer of the Charlton Fire District, petitioner stole over $495,000 in public monies for her personal use and gain over a several-year period.Inasmuch as it was appropriate for the determination to be based upon the nature of the instant offenses and petitioner's violation of the public trust (see7 NYCRR 1900.4 [l];Matter of Crispino v. Goord, 31 A.D.3d at 1023, 818 N.Y.S.2d 357 ), we are unable to conclude that the determination upholding the denial of her application was irrational or violated petitioner's statutory or constitutional rights (seeMatter of Lapetina v. Fischer, 76 A.D.3d at 723, 906 N.Y.S.2d 648;Matter of Collins v. Goord, 24 A.D.3d 1048, 1049, 805 N.Y.S.2d 741[2005];Matter of Abascal v. Maczek, 19 A.D.3d 913, 914, 796 N.Y.S.2d 757[2005], lv. denied5 N.Y.3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133[2005] ).

Petitioner also contends that she was entitled to have her temporary work release application automatically approved by the Committee, subject to administrative review, by reason of her score of 50 on the temporary release...