State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 519827 

________________________________

In the Matter of JOHN D.

JUSTICE,

Appellant,

v

COMMISSIONER OF THE NEW YORK

STATE DEPARTMENT OF MEMORANDUM AND ORDER

CORRECTIONS AND COMMUNITY

SUPERVISION,

Respondent.

________________________________

Calendar Date: June 4, 2015

Before: Garry, J.P., Rose, Devine and Clark, JJ.

__________

John D. Justice, Comstock, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Laura

Etlinger of counsel), for respondent.

__________

Rose, J.

Appeal from a judgment of the Supreme Court (McGrath, J.),

entered October 6, 2014 in Albany County, which, among other

things, dismissed petitioner's application, in a proceeding

pursuant to CPLR article 78, to review a determination of the

Department of Corrections and Community Supervision enforcing the

terms of petitioner's conditional release.

Petitioner is currently an inmate in the custody of the

Department of Corrections and Community Supervision (hereinafter

DOCCS) serving an aggregate prison sentence of 13a to 40 years

for his convictions of manslaughter in the first degree and
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manslaughter in the second degree in connection with the killing

of two people (see People v Justice, 202 AD2d 981, 981-982

[1994], lv denied 83 NY2d 968 [1994]). Petitioner is also an

acquitee by reason of mental disease or defect subject to CPL

330.20 in connection with the killing of two other people (see

People ex rel. Justice v Racette, 111 AD3d 1041, 1042 [2013], lv

denied 22 NY3d 861 [2014]; People v Justice, 173 AD2d 144, 146

[1991]). Although petitioner was paroled in 2005, his parole was

later revoked after he threatened staff at his approved

residence, and he was ordered to be held until the expiration of

his sentence (see Justice v Graham, 2010 WL 5559547, *2, 2010 US

Dist LEXIS 137375, *4-5 [WD NY, Dec. 30 2010, No. 09-CV-6054T]). 

In anticipation of his impending conditional release, the

Board of Parole required petitioner to, among other things,

provide proposed residences to be approved by DOCCS. After DOCCS

rejected the three residences proposed by petitioner, he

commenced this CPLR article 78 proceeding challenging the

determination and seeking discovery of the basis for the

rejection.1 Supreme Court denied the motion for discovery and

dismissed the petition, concluding that the determination to

reject the proposed residences was rational. Petitioner appeals. 

We cannot agree with petitioner's claim that there is no

basis for the rejection of the residences he proposed. Our

review of the confidential information submitted in support of

the determination establishes that, upon investigation, DOCCS was

advised that one of the residences accepted only federal

probationers, another had rejected petitioner because of a

previous encounter with him and the third indicated that he was

not a suitable candidate for their services. Given that none of

the residences could accommodate petitioner's request for

residence, DOCCS's determination was rational and will not be

disturbed (see Matter of Boss v New York State Div. of Parole, 89

AD3d 1265, 1266 [2011]; Matter of Monroe v Travis, 280 AD2d 675,

1 Petitioner also brought an unsuccessful proceeding

seeking to hold DOCCS in civil contempt for not approving his

proposed residences (Matter of Justice v Fischer, 126 AD3d 1266,

1266-1267 [2015]). 
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676 [2001], lv denied 96 NY2d 714 [2001]; People v ex rel. Wilson

v Keane, 267 AD2d 686, 686 [1999], appeal dismissed 95 NY2d 824

[2000]). 

Further, we find no basis to disturb Supreme Court's denial

of petitioner's request for discovery of the confidential

material relied on by DOCCS. The Board of Parole is authorized

to treat records as confidential if their release "could endanger

the life or safety of any person" (Public Officers Law § 87 [2]

[a], [f]; see Executive Law § 259-k [2]; 9 NYCRR 8000.5 [c] [2]

[i] [a] [3]). Given petitioner's violent crimes, ongoing mental

health issues and previous threats to staff at his prior

residence while he was on parole, we find no abuse of discretion

in Supreme Court's denial of petitioner's request for access to

the confidential documents (see Matter of Carty v New York State

Div. of Parole, 277 AD2d 633, 633-634 [2000]; Matter of Jordan v

Hammock, 86 AD2d 725, 725 [1982], appeal dismissed 57 NY2d 674

[1982]). Nor is there any merit to petitioner's contention that

his constitutional rights were violated by the denial of his

motion for discovery inasmuch as the Board of Parole's

determination is administrative and the rights afforded to a

defendant in a criminal proceeding do not apply (see e.g. Matter

of Alexander v New York State Div. of Parole, 236 AD2d 761, 761

[1997]; Matter of Milburn v New York State Div. of Parole, 173

AD2d 1016, 1016 [1991]). Petitioner's remaining contentions have

been considered and determined to be unavailing. 

Garry, J.P., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court