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Maxson v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 16, 2009

IN THE MATTER OF KOREY MAXSON, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: March 2, 2009

Before: Mercure, J.P., Spain, Lahtinen, Malone Jr. and McCarthy, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Egan Jr., J.), entered May 1, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent withholding petitioner's good time credit.

Petitioner, serving prison time for convictions for sexual abuse in the first degree and rape in the third degree, commenced this CPLR article 78 proceeding challenging respondent's determination to withhold good time credit. Supreme Court dismissed the petition, prompting this appeal.

We affirm. The decision to withhold good time credit is discretionary and is not subject to judicial review so long as it is made in accordance with the law (see Matter of Benjamin v New York State Dept. of Correctional Servs., 19 AD3d 832, 833 [2005]). Here, petitioner's failure to complete the sex offender counseling program, from which he had been removed for disciplinary reasons, demonstrates his refusal to address the specific conduct that caused his imprisonment and, as a result, provides a rational basis for respondent's determination (see Matter of Given v Goord, 51 AD3d 1343, 1343-1344 [2008]).

To the extent not specifically discussed herein, we have considered petitioner's remaining contentions and find them to be unavailing.

Mercure, J.P., Spain, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090416

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