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In the Matter of Carlos Abreu v. Michael F. Hogan

State of New York Supreme Court, Appellate Division Third Judicial Department


January 5, 2012

IN THE MATTER OF CARLOS ABREU, APPELLANT,
v.
MICHAEL F. HOGAN, AS COMMISSIONER OF MENTAL HEALTH, ET AL., RESPONDENTS.

Appeal from a judgment of the Supreme Court (Devine, J.), entered December 13, 2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying his grievance.

The opinion of the court was delivered by: McCarthy, J.

MEMORANDUM AND ORDER

Calendar Date: November 22, 2011

Before: Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.

Petitioner, while an inmate at Auburn Correctional Facility in Cayuga County, submitted a grievance in April 2008 contending that he was improperly being denied participation in the sex offender counseling and treatment program and was not receiving proper mental health treatment. Ultimately, the Central Office Review Committee denied petitioner's grievance, after which he commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner now appeals.

We affirm. The facility at which petitioner was incarcerated in April 2008 did not offer the sex offender counseling and treatment program, and petitioner was informed that, upon completion of his term in the special housing unit, he would be transferred to a facility that offered the program if his participation was deemed appropriate. In addition, the record demonstrates that petitioner's mental health needs are, indeed, being addressed. As such, we cannot say that the Central Office Review Committee's denial of petitioner's grievance was arbitrary and capricious or without a rational basis (see Matter of Lopez v Fischer, 83 AD3d 1230, 1231 [2011], lv denied 17 NY3d 709 [2011]; Matter of Simmons v New York State Dept. of Correctional Servs., 82 AD3d 1382, 1383 [2011]).

Spain, J.P., Malone Jr., Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120105

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