Johnson v. Recore

—Appeal from a judgment of the Supreme Court (LaBuda, J.), entered August 22, 2000 in Sullivan County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s request to participate in a temporary release program.

Petitioner, serving a sentence for attempted murder in the second degree, applied for permission to participate in an industrial training leave as part of a temporary release program. The application was denied as the offense for which petitioner is incarcerated renders him ineligible to participate in such program (see, 7 NYCRR 1900.4 [c] [1] [ii]; [3]). Supreme Court dismissed the CPLR article 78 proceeding to review that determination and we affirm.

Inasmuch as an inmate’s participation in a temporary release program is a privilege and not a right (see, Correction Law § 855 [9]), “our review is limited to determining whether the denial of the privilege ‘violated any positive statutory requirement or denied a constitutional right of the inmate and whether [it] is affected by irrationality bordering on impropriety’ ” (Matter of Williams v Recore, 251 AD2d 833 , 833-834, quoting Matter of Gonzalez v Wilson, 106 AD2d 386 , 386-387). Petitioner has not established that the denial of his application

Crew III, J. P., Peters, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.