Banks v. Recore

—Appeal from a judgment of the Supreme Court (Torraca, J.), entered March 7, 1997 in Albany County, which dismissed petitioner’s application, in a [907] proceeding pursuant to CPLR article 78, for, inter alia, failure to exhaust administrative remedies. On March 4, 1996, petitioner, an inmate at Ulster Correctional Facility in Ulster County, applied for but was denied participation in the temporary release/work release program because of his low point score. In this CPLR article 78 proceeding, petitioner contends that he was denied participation in the program because his prison records indicate that he absconded from a correctional facility while on a work release program in November 1993. Petitioner argues that because he was never prosecuted for or found guilty of absconding from that facility, any reference to the incident in his prison records violates due process and requires that the reference be expunged. We agree with Supreme Court that inasmuch as petitioner failed to exhaust his administrative remedies to address his complaint, dismissal of the petition is warranted (see, Matter of Roberts v Coughlin, 165 AD2d 964; see also, Correction Law §§ 112, 139; 7 NYCRR part 701). In any event, the petition is meritless since the record discloses that petitioner did not receive a disciplinary report for the charge of absconding and, therefore, is eligible for temporary release consideration. White, J. P., Yesawich Jr., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.