Waters v. Coombe

—Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered August 2, 1995 in Albany County, which, inter alia, granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s requests to participate in a furlough program, a temporary work release program, an industrial training program and an educational leave program. Petitioner, an inmate serving time for murder in the second degree and manslaughter in the first degree, submitted requests to participate in four different temporary release programs. Respondent denied petitioner’s requests based upon recent amendments to Correction Law § 851 (2) {see, L 1994, ch 60, § 42). Petitioner, in turn, commenced this CPLR article 78 proceeding. Upon considering the merits, Supreme Court found that respondent had improperly applied Correction Law § 851 (2) to all forms of temporary release and, therefore, annulled that part of its determination denying petitioner’s requests for a furlough, industrial training leave and educational leave. The court remitted the matter to respondent for further proceedings, but denied the other relief sought in the petition. Petitioner’s sole argument on appeal is that Correction Law § 851 should be declared an illegal ex post facto law. Inasmuch as this argument has been previously considered and rejected [853] by this Court (see, Matter of Clow v Coughlin, 222 AD2d 781; Matter of Jandelli v Coughlin, 217 AD2d 733), we find that it is without merit. Cardona, P. J., Mikoll, Mercure, Casey and Yesawich Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.