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In re Barnes

Supreme Court of New York, Third Department

September 26, 2013

In the Matter of JESSIE J. BARNES, Appellant,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date July 29, 2013.

Jessie J. Barnes, Malone, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.

Before: Lahtinen, J.P., Stein, McCarthy and Spain, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Zwack, J.), entered February 28, 2012 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review two determinations of the Central Office Review Committee denying petitioner's grievances.

Petitioner, a prison inmate, has an extensive prison disciplinary record demonstrating his predilection toward violent and abusive behavior (see e.g. Matter of Barnes v. Prack, 101 A.D.3d 1277, 1277-1278 [2012]; Matter of Barnes v Fischer, 93 A.D.3d 967, 967-968 [2012]; Matter of Barnes v Prack, 87 A.D.3d 1251, 1251-1252 [2011]). As a result of that behavior, he was placed under a fixed protective hatch cover order and a retention strap order in 2010 [1]. Petitioner filed grievances challenging both orders and, after they were denied by the Central Office Review Committee, he commenced the present CPLR article 78 proceeding. Supreme Court found the determinations to be neither arbitrary nor capricious and dismissed the petition, prompting this appeal.

We affirm. In light of petitioner's penchant for disruptive and assaultive conduct, the denials of his grievances were "rationally based upon legitimate security" concerns (Matter of Green v Bradt, 91 A.D.3d 1235, 1237 [2012], lv denied 19 N.Y.3d 802 [2012]; see Turner v Safley, 482 U.S. 78, 89 [1987]; Matter of Malik v Wilhelm, 159 A.D.2d 755, 756 [1990], lv denied 76 N.Y.2d 704 [1990]). As the Central Office Review Committee correctly noted, neither a retention strap nor a hatch cover constitutes restraints to which the notice and renewal requirements of 7 NYCRR 305.4 apply (see 7 NYCRR 305.3 [a]; cf. Matter of Malik v Wilhelm, 159 A.D.2d at 756). Petitioner's remaining contentions have been examined and found to be unpersuasive.

Lahtinen, J.P., Stein, McCarthy and Spain, JJ., concur.

ORDERED that the judgment is affirmed, without costs.


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