Aybar v. Watkins

Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered April 20, 2012 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of Corrections and Community Supervision denying petitioner’s application to participate in the shock incarceration program. Petitioner commenced this CPLR article 78 proceeding to challenge the denial of his application to participate in the shock incarceration program (see Correction Law § 867 [2]; 7 NYCRR 1800.3 [c]). “Participation in the shock incarceration program shall be a privilege,” however, not a right (Correction Law § 867 [5]; see People v Providence, 14 AD3d 884, 885 [2005], lv denied 4 NY3d 856 [2005]; Matter of Gomez v Obot, 170 AD2d 1036, 1037 [1991], lv denied 78 NY2d 856 [1991]). Inasmuch as petitioner is incarcerated due to his efforts to sell several kilograms of cocaine, we agree with Supreme Court that the denial of his application was rational (see Matter of Gomez v Obot, 170 AD2d at 1037). His remaining arguments have been examined and found to lack merit. Peters, PJ., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.