Calendar Date: February 28, 2017
Kairis, Wallkill, appellant pro se.
T. Schneiderman, Attorney General, Albany (Martin A. Hotvet
of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Rose, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Nichols, J.), entered
April 27, 2016 in Columbia County, which dismissed
petitioner's application, in a proceeding pursuant to
CPLR article 78, to, among other things, review
determinations of the Central Office Review Committee denying
a prison inmate, filed four grievances, dated December 24,
2013, April 21, 2014, April 22, 2014 and May 19, 2014,
challenging various conditions of his confinement.
Petitioner's December 2013, April 21, 2014 and May 2014
grievances were ultimately denied by the Central Office
Review Committee (hereinafter CORC). Petitioner then
commenced this CPLR article 78 proceeding challenging the
denial of those grievances and CORC's failure to issue a
determination with regard to his April 22, 2014 grievance.
Following joinder of issue, Supreme Court dismissed the
petition, and this appeal by petitioner ensued.
affirm. "Judicial review of the denial of an inmate
grievance is limited to whether such determination was
arbitrary and capricious, irrational or affected by an error
of law" (Matter of Shoga v Annucci, 122 A.D.3d
1180, 1180  [internal quotation marks and citations
omitted]; accord Matter of Johnson v Annucci, 139
A.D.3d 1271, 1272 , appeal dismissed 28 N.Y.3d
946 ; Matter of Bottom v Annucci, 125 A.D.3d
1070, 1071 , appeal dismissed 25 N.Y.3d 1057');">25 N.Y.3d 1057
). Turning first to petitioner's December 2013
grievance that he was no longer permitted to keep his
electronic music keyboard, CORC found that the keyboard
presented legitimate security concerns because it was capable
of producing life-like sounds. Inasmuch as CORC's
determination was based upon the safety and security of the
facility, which may regulate and restrict what personal
property is permitted (see Matter of Abreu v
Fischer, 97 A.D.3d 877, 878 , appeal
dismissed 19 N.Y.3d 1096');">19 N.Y.3d 1096 ; Matter of Frejomil
v Fischer, 68 A.D.3d 1371, 1372 ; see
generally 7 NYCRR 724.4 [a] ) - including, pursuant
to Department of Corrections and Community Supervision
Directive No. 4911, musical devices with digital voice and
sound production capability - we discern no reason to disturb
CORC's denial of petitioner's December 2013 grievance
(see Matter of Davis v Fischer, 76 A.D.3d 1152, 1152
; Matter of Blades v Twomey, 159 A.D.2d 868,
868 ; compare Matter of James v Fischer, 102
A.D.3d 1019, 1020 ).
regard to CORC's denial of petitioner's April 21,
2014 grievance challenging the lack of available writing
paper while he was in keeplock detention, petitioner
acknowledged that he had access to typing paper. Moreover,
petitioner could request paper through the law library, and
that portion of petitioner's grievance concerning his
commissary privileges became moot upon petitioner's
return to the general population (see Matter of Shoga v
Annucci, 122 A.D.3d at 1181; Matter of Tafari v
Leclaire, 79 A.D.3d 1539, 1540 , lv
denied 16 N.Y.3d 709');">16 N.Y.3d 709');">16 N.Y.3d 709');">16 N.Y.3d 709 ). Similarly, we find no
reason to disturb CORC's denial of petitioner's May
2014 grievance challenging employment opportunities within
the facility, as CORC's rejection of petitioner's
grievance was rational. Petitioner had no absolute right to a
particular job assignment, and Department of Corrections and
Community Supervision Directive No. 4803 provides that an
inmate's custodial history may properly be considered
when making certain job assignments (see Matter of Soto v
Central Off. Review Comm. of the Dept. of Corrections &
Community Supervision, 118 A.D.3d 1229, 1231 ,
lv denied 16 N.Y.3d 709');">16 N.Y.3d 709');">16 N.Y.3d 709');">16 N.Y.3d 709 ). Finally, we agree
with respondent that petitioner's claim regarding his
April 22, 2014 grievance is moot inasmuch as CORC issued a
decision in October 2015 (cf. Matter of Shoga v
Annucci, 122 A.D.3d at 1181; see also Matter of
Jones v Fischer, 110 A.D.3d 1295, 1296 ,
appeal dismissed 23 N.Y.3d 955');">23 N.Y.3d 955 ).
Petitioner's remaining contentions have been examined and
found to be without merit.
Jr., J.P., Lynch, Rose, Clark ...