Rivera v. Joy

Appeal from a judgment of the Supreme Court (Stein, J.), entered July 12, 2007 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s application to participate in a temporary release program. Petitioner is currently serving an aggregate prison term of six years to life upon his convictions of criminal sale of a controlled substance in the second degree, criminal possession of a weapon in the third degree (four counts), criminal possession of a controlled substance in the seventh degree, speeding and driving while ability impaired. In May 2006, petitioner applied for participation in a temporary work release program. The Temporaiy Release Committee denied his application based on, among other things, the nature of his offenses. In response, petitioner sent a letter to respondent acknowledging receipt of the denial. Although the letter did not assert any substantive objections, respondent apparently treated it as an administrative appeal by petitioner. The determination was then affirmed 1334 and this CPLR article 78 proceeding ensued. Finding none of petitioner’s claims to be preserved or otherwise properly before the court, Supreme Court dismissed the petition. Petitioner now appeals. We affirm. Although petitioner now alleges, among other things, that the denial of his work release application was arbitrary and capricious, petitioner did not raise any of these claims on administrative appeal and, as a result, they are not preserved for this Court’s review (see Matter of Khan v New York State Dept. of Health, 96 NY2d 879 [2001]; Matter of Newsome v Selsky, 26 AD3d 565, 566 [2006]). Similarly, petitioner’s claim that his institutional record contains inaccurate information is not properly before the Court as petitioner has not exhausted his available administrative remedies (see 7 NYCRR part 5; Matter of Pickett v Long, 229 AD2d 802, 803 [1996]). Petitioner’s remaining contentions have been considered and found to be unpersuasive. Cardona, P.J., Mercure, Carpinello, Rose and Malone Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.