State of New York Supreme Court, Appellate Division Third Judicial Department
December 6, 2012
IN THE MATTER OF DAVVON HINES, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: October 29, 2012
Before: Rose, J.P., Lahtinen, Kavanagh, Garry and Egan Jr., JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review (1) a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules, and (2) a determination of respondent denying petitioner's request for a merit time allowance.
In 2009, petitioner was found guilty, after a tier III determination, of violating prison disciplinary rule 105.13, prohibiting possession of gang-related material. In 2010, petitioner was determined to be ineligible for a merit time allowance due to the 2009 disciplinary infraction. Petitioner filed a grievance challenging the denial of a merit time allowance, which was denied on administrative appeal. Petitioner thereafter commenced this proceeding pursuant to CPLR article 78 challenging both the determination finding him guilty of violating a prison disciplinary rule and the determination denying his request for a merit time allowance.
Initially, petitioner acknowledges that he was advised of his right to administratively appeal the disciplinary determination within 30 days thereof, but did not do so. Accordingly, our review of that determination is precluded by petitioner's failure to exhaust his administrative remedies (see Matter of Weems v Fischer, 82 AD3d 1454, 1455 ).
With regard to petitioner's challenge to the merit time allowance determination, as is relevant here, an inmate is disqualified from receiving a merit time allowance if he or she has committed "any serious disciplinary infraction" (Correction Law § 803  [d] [iv]). The Department of Corrections and Community Supervision has promulgated a code section enumerating such "serious disciplinary infraction[s]" (7 NYCRR 280.2 [b]), and petitioner argues that because rule 105.13 is not specifically set forth therein, the infraction cannot serve to disqualify him from consideration for a merit time allowance. We disagree. Rule 105.12, which is enumerated in the relevant code section (see 7 NYCRR 280.2 [b]  [viii]), was repealed and replaced by rule 105.13 as of May 28, 2008 (see 7 NYCRR 270.2). The Department thereafter issued Merit Time Directive No. 4790 (dated October 12, 2011) specifically providing that disqualifying disciplinary infractions include rule 105.12 -- for violations occurring prior to May 28, 2008 -- and rule 105.13. Accordingly, we find that the determination had a rational basis and was not an abuse of discretion or arbitrary and capricious (see Matter of Brooks v Fischer, 95 AD3d 1578, 1578 ; Matter of Green v Bradt, 91 AD3d 1235, 1237 , lv denied 19 NY3d 802 ; Matter of La Rocco v Goord, 15 AD3d 809, 809-810 ).
Rose, J.P., Lahtinen, Kavanagh, Garry and Egan Jr., JJ., concur.
ADJUDGED that the part of the petition challenging the tier III determination is dismissed, without costs.
ADJUDGED that the determination denying petitioner a merit time allowance is confirmed, without costs, and petition dismissed to that extent.
Robert D. Mayberger Clerk of the Court
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