        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

878
TP 11-00462
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, GREEN, AND GORSKI, JJ.


IN THE MATTER OF JERMAINE BAKER, PETITIONER,

                    V                              MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (EDWARD L. CHASSIN OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Wyoming County [Mark H.
Dadd, A.J.], entered March 2, 2011) to review a determination of
respondent. The determination denied the application of petitioner
for temporary release.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the determination denying his application for
temporary release to a substance abuse treatment program. We note at
the outset that the proceeding was improperly transferred to this
Court pursuant to CPLR 7804 (g) because no substantial evidence
question is raised herein (see generally CPLR 7803 [4]; Correction Law
§ 855 [9]; Matter of Tatta v Dennison, 26 AD3d 663, lv denied 6 NY3d
714; Matter of Gonzalez v Wilson, 106 AD2d 386). Nevertheless, we
consider the merits of the petition in the interest of judicial
economy (see generally Matter of La Rocco v Goord, 19 AD3d 1073).
Here, petitioner’s escalating criminal history, especially the
circumstances of his instant offense, raised rational concerns
regarding whether petitioner was sufficiently trustworthy to
participate in a temporary release program and whether his release
would pose a threat to community safety (see Matter of Wallman v Joy,
304 AD2d 996; Matter of Romer v Goord, 242 AD2d 574, lv denied 91 NY2d
811). Thus, the determination denying petitioner’s application for
temporary release was not “affected by irrationality bordering on
impropriety,” nor did respondent violate any statutory requirement or
                                 -2-                          878
                                                        TP 11-00462

deny a constitutional right of petitioner (Gonzalez, 106 AD2d at 386-
387).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
