State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 19, 2016 520018 

________________________________

In the Matter of DOUGLAS E.

JOHNSON,

Appellant,

v

MEMORANDUM AND ORDER

ANTHONY J. ANNUCCI, as Acting

Commissioner of Corrections

and Community Supervision,

Respondent.

________________________________

Calendar Date: April 27, 2016

Before: Peters, P.J., Lahtinen, Garry, Clark and Mulvey, JJ.

__________

Douglas E. Johnson, Malone, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Julie M.

Sheridan of counsel), for respondent.

__________

Peters, P.J.

Appeal from a judgment of the Supreme Court (Feldstein,

J.), entered August 28, 2014 in Franklin County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of the Central Office

Review Committee denying petitioner's grievance.

In 1985, petitioner was convicted of murder in the second

degree (three counts) and rape in the first degree. The judgment

of conviction was affirmed on appeal (People v Johnson, 160 AD2d

813 [1990], lv denied 76 NY2d 790 [1990]). In 2013, while housed

at the Franklin Correctional Facility, petitioner was informed

that, pursuant to his convictions, he was required to participate
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in the Sex Offender Counseling and Treatment Program (hereinafter

SOCTP). In response, petitioner signed a program refusal form

that included the admonition that refusing to participate in a

mandatory program may result in, among other things, an

ineligibility for an area of preference transfer and a reduction

in pay grade and job assignment. Following his refusal,

petitioner's work assignment was changed to a lower pay grade

job. 

Petitioner filed a grievance challenging the change in pay

grade, requesting that he be granted his area of preference

transfer and asserting that his participation in SOCTP should be

waived in light of his protestation of innocence of the sex

offense crime. The grievance was ultimately denied by the

Central Office Review Committee. Petitioner commenced this CPLR

article 78 proceeding challenging the denial of his grievance. 

Following joinder of issue, Supreme Court dismissed the petition

and this appeal ensued.

We affirm. "Judicial review of the denial of an inmate

grievance is limited to whether such determination was arbitrary

and capricious, irrational or affected by an error of law"

(Matter of Shoga v Annucci, 122 AD3d 1180, 1180 [2014] [internal

quotation marks and citations omitted]; accord Matter of Bottom v

Annucci, 125 AD3d 1070, 1071 [2015], appeal dismissed 25 NY3d

1057 [2015]). Initially, in light of petitioner's refusal to

complete SOCTP, the change in his pay grade and job assignment,

as well as the denial of his request for preference transfer, was

not arbitrary and capricious, irrational or affected by an error

of law (see Matter of Pride v New York State Dept. of

Correctional Servs., 91 AD3d 1003, 1004 [2012]; Matter of

Salahuddin v Goord, 64 AD3d 1091, 1092 [2009]). We reject

petitioner's claim that his participation in SOCTP should be

waived because he maintains that he is innocent of the sex

offense for which he was convicted. Petitioner's convictions

were affirmed on appeal and, contrary to his contention, he has

not demonstrated any deprivation of his constitutional rights or

any other prejudice that would result from his participation in

the treatment program (cf. Matter of Griffin v Coughlin, 88 NY2d

674, 691-692 [1996], cert denied 519 US 1054 [1997]).
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Lahtinen, Garry, Clark and Mulvey, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court