Conese v. Headley , 678 N.Y.S.2d 715 ( 1998 )

—Order and judgment (one paper), Supreme Court, Bronx County (Kenneth Thompson, J.), entered July 25, 1997, which denied petitioner’s application to annul respondents’ determination removing petitioner from the temporary release program, unanimously affirmed, without costs.

Petitioner, an inmate serving an 8-to-24-year sentence for a manslaughter conviction, who was removed from the temporary release program following his denial of parole for the second time within 24 months, was afforded due process by the hearing he was given before the Temporary Release Committee, and a second hearing before the Superintendent was not required (see, 7 NYCRR 1904.5 [b]; People ex rel. Baker v Lefevre, 216 AD2d 620). It was within the Superintendent’s authority to reject the Committee’s recommendation and to revoke petitioner’s participation in the program (see, 7 NYCRR 1904.2 [o], [p]; 1904.1 [b], [c] [13]). That determination, made after a review of all factors, including the denial of parole for a violent crime, was not arbitrary and capricious. We have considered petitioner’s argument that reversal is required because of the motion court’s misreading of the Superintendent’s determination as based on the likelihood that petitioner would attempt to escape were he continued in the program, and find it to be without merit. Concur — Sullivan, J. P., Milonas, Nardelli and Tom, JJ.