In the Matter of KYLE A. WEISSENBURGER, Appellant,
ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Calendar Date: September 5, 2017
A. Weissenburger, Henrietta, appellant pro se.
T. Schneiderman, Attorney General, Albany (Allyson B. Levine
of counsel), for respondent.
Before: McCarthy, J.P., Garry, Clark, Mulvey and Rumsey, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Young, J.), entered May
10, 2016 in Albany County, which dismissed petitioner's
application, in a proceeding pursuant to CPLR article 78, to
review a determination of the Department of Corrections and
Community Supervision denying, among other things,
petitioner's request for a certificate of good conduct.
pleaded guilty to driving while intoxicated in 2008 and was
sentenced to five years of probation. His term of probation
was terminated in July 2011. In 2015, petitioner applied to
respondent for a certificate of good conduct (hereinafter
CGC), specifically requesting that he be relieved of the
forfeiture of his rights to hold public office and to possess
firearms that resulted from his conviction (see
Correction Law §§ 703-a, 703-b) . The
Department of Corrections and Community Supervision denied
the application and petitioner's subsequent request for
reconsideration. Petitioner thereafter commenced this CPLR
article 78 proceeding challenging the denial of the CGC, as
well as respondent's denial of certain of his requests
for documents under the Freedom of Information Law. Supreme
Court dismissed the petition, finding, among other things, a
rational basis for the denial of the CGC, and this appeal
review of an agency's determination in matters such as
this "is limited to ascertaining whether it was
arbitrary and capricious or an abuse of discretion"
(Matter of Cohen v New York State Workers'
Compensation Bd., 122 A.D.3d 1222, 1223 ; see
Matter of Arrocha v Board of Educ. of City of N.Y., 93
N.Y.2d 361, 363 ). Respondent may issue a CGC to any
individual convicted of a crime in New York when satisfied
that the individual has conducted himself or herself "in
a manner warranting such issuance" and that the issuance
"is consistent with the rehabilitation of the
applicant" and "consistent with the public
interest" (Correction Law § 703-b ). Here,
respondent denied petitioner's application on the ground
that issuing the CGC was "inconsistent with public
response to petitioner's request for reconsideration, the
Assistant Commissioner of Corrections and Community
Supervision, who was assigned to resolve petitioner's
application, informed petitioner that he considered various
factors while evaluating the application, including the
nature of prior offenses and convictions and the impact of
those offenses, as well as petitioner's social and
personal circumstances. This individual also submitted a
sworn affidavit in response to petitioner's CPLR article
78 petition. Contrary to petitioner's contention, the
affidavit can be considered despite the fact that it was not
submitted during the administrative process, inasmuch as
there was no administrative hearing and it was based on
firsthand knowledge of the decision-making process regarding
petitioner's application (see Matter of Entergy
Nuclear Indian Point 2, LLC v New York State Dept. of
State, 130 A.D.3d 1190, 1193 n 5 ; Matter of
Brown v Sawyer, 85 A.D.3d 1614, 1615-1616 ;
Matter of Kirmayer v New York State Dept. of Civ.
Serv., 24 A.D.3d 850, 852 ; compare Matter of
Menon v New York State Dept. of Health, 140 A.D.3d 1428,
1431 ; Matter of Office Bldg. Assoc., LLC v Empire
Zone Designation Bd., 95 A.D.3d 1402, 1405-1406 ).
affidavit, the Assistant Commissioner noted that the
investigative report associated with petitioner's
application for the certificate of relief from disabilities
reported that petitioner had a history of mental health
problems and alcohol and drug abuse. In our view, the
reliance on the specific nature of petitioner's offense,
his conduct at the time of his arrest, and the cited history
of his prior mental health problems and alcohol abuse
establish a rational basis for the denial of the application,
notwithstanding petitioner's commendable efforts at
rehabilitation. Petitioner's remaining claims have been
considered and found to be without merit. Therefore, Supreme
Court's judgment dismissing the petition is affirmed.
McCarthy, J.P., Garry, Clark and Mulvey, JJ., concur.
that the judgment is affirmed, without costs.