State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 17, 2016 520858 

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In the Matter of FERNANDO 

GORDON,

Appellant,

v MEMORANDUM AND ORDER

CHERYL MORRIS, as Director of

Ministerial, Family and

Volunteer Services for the

Department of Corrections

and Community Supervision,

Respondent.

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Calendar Date: October 20, 2016

Before: McCarthy, J.P., Lynch, Devine, Mulvey and Aarons, JJ.

__________

Fernando Gordon, Wallkill, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen

Treasure of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the Supreme Court (McDonough,

J.), entered March 2, 2015 in Albany 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 the family reunion

program.

In 1994, petitioner and two accomplices were involved in

the robbery of a hair salon during which they drew their weapons

and terrorized patrons of the salon. One patron, who was a
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police officer, engaged in a gun battle with the intruders and

petitioner attempted unsuccessfully to shoot the officer when his

gun jammed before ultimately fleeing the scene. As a result of

this incident, petitioner was convicted of a number of crimes,

including attempted murder in the first degree, and is currently

serving a lengthy term of incarceration, the maximum of which is

life in prison.

In 2007 and 2008, during his incarceration, petitioner was

granted permission to participate in the family reunion program

with his then-wife and her two children. In 2009, petitioner and

his wife divorced. In January 24, 2013, petitioner married his

second wife and, exactly six months later, he submitted an

application to participate in the family reunion program with

her. Because petitioner was designated a central monitoring

case, his application was forwarded to the Central Office for

special review (see 7 NYCRR 220.2 [c] [1] [i]). The Central

Office denied petitioner's application and the denial was upheld

by respondent on administrative appeal. Petitioner commenced

this CPLR article 78 proceeding challenging the denial and,

following service of respondent's answer, Supreme Court dismissed

the petition. This appeal by petitioner ensued.

We affirm. Initially, it is well settled that an inmate's

participation in a family reunion program is a privilege, not a

right (see Matter of Scott v Richey, 141 AD3d 1058, 1058 [2016];

Matter of Mays v Morris, 133 AD3d 1050, 1051 [2015]). The

decision of whether to allow an inmate to participate is "heavily

discretionary" and will not be disturbed as long as it has a

rational basis (Matter of Doe v Coughlin, 71 NY2d 48, 56 [1987],

cert denied 488 US 879 [1988]; see Matter of Rodriguez v Annucci,

129 AD3d 1417, 1418 [2015]). Notably, "[p]rior participation in

the program does not guarantee that a future application will be

approved" (Matter of Garcia v Morris, 140 AD3d 1441, 1441 [2016],

lv denied ___ NY3d ___ [Oct. 27, 2016]). 

In this case, the violent nature of petitioner's crimes was

a pertinent factor for respondent to consider in denying his

application (see e.g. Matter of Garcia v Morris, 140 AD3d at

1442; Matter of Mays v Morris, 133 AD3d at 1051; Matter of

Rodriguez v Annucci, 129 AD3d at 1418). Petitioner's recent
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marriage was also a relevant consideration as it did not further

the program goal of preserving, enhancing and strengthening

family ties that have been disrupted due to incarceration (see

Dept of Corr & Community Supervision Directive No. 4500 § I;

Matter of Garcia v Morris, 140 AD3d at 1442; Matter of Campbell v

Morris, 139 AD3d 1278, 1279 [2016]). In view of the foregoing,

we find that the denial of petitioner's application had a

rational basis. We have considered petitioner's remaining

contentions and find them to be lacking in merit.

McCarthy, J.P., Devine, Mulvey and Aarons, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court