Majority
p. 892In the Matter of Robert Lee, Respondent, v Charles Brunelle, as Superintendent of Wyoming Correctional Facility, et al., Appellants. [648 NYS2d 66]
Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in annulling respondents’ determination that petitioner was ineligible to participate in a temporary release program. An inmate convicted of a violent
p. 893
felony is not eligible to participate in a temporary release program if the crime involved either the use or threatened use of a dangerous instrument or deadly weapon (see, Gov. Pataki’s Executive Order No. 5 [9 NYCRR 5.5], filed Jan. 24, 1995; 7 NYCRR 1900.4 [c] [1] [ii]). Here, petitioner was convicted of three counts of robbery in the second degree, a violent felony, and respondents had facts before them establishing that petitioner threatened one cab driver with a gun and another with a knife during two of the robberies. Thus, respondents properly determined that he was not eligible for temporary release.
We have reviewed the remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Erie County, Joslin, J.—CPLR art 78.) Present—Denman, P. J., Lawton, Fallon, Doerr and Balio, JJ.