                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: November 19, 2015                   518621
________________________________

In the Matter of KEVIN R.
   MAYS,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
CHERYL MORRIS, as Director of
   Ministerial, Family and
   Volunteer Services of the
   Department of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   October 22, 2015

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

                             __________


     Kevin R. Mays, Elmira, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Allyson B.
Levine of counsel), for respondent.

                             __________


Clark, J.

      Appeal from a judgment of the Supreme Court (Breslin, J.),
entered November 26, 2013 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent denying his
request to participate in the family reunion program.

      After holding up a toll collector at gun point, petitioner
was convicted of robbery in the first degree and robbery in the
second degree for which he was sentenced to 25 years to life in
prison (People v Mays, 232 AD2d 332 [1996], lv denied 89 NY2d 926
                              -2-                518621

[1996]; see Mays v Kelly, US Dist Ct, SD NY, 98 Civ 550,
Cedarbaum, J., 2000). He is currently incarcerated at the Elmira
Correctional Facility in Chemung County and filed an application
to participate in the family reunion program (hereinafter FRP)
with his wife and two stepchildren. Because he was classified as
a central monitoring case, his application was subject to special
review (see 7 NYCRR 220.2 [c] [1] [i]). Following such review,
his application was denied and the denial was upheld by
respondent on administrative appeal. Respondent based the denial
upon the seriousness of petitioner's prior crimes and his
extensive prison disciplinary record, together with his lack of
commitment to his marriage. Petitioner commenced this CPLR
article 78 proceeding challenging respondent's determination and,
following joinder of issue, Supreme Court dismissed the petition.
Petitioner now appeals.

      Initially, it is well settled that participation in the FRP
is a privilege and not a right (see Matter of Doe v Coughlin, 71
NY2d 48, 55 [1987], cert denied 488 US 879 [1988]; Matter of
Rodriguez v Annucci, 129 AD3d 1417, 1418 [2015]). The
determination of whether an inmate may participate is "heavily
discretionary" and will be upheld if it has a rational basis
(Matter of Doe v Coughlin, 71 NY2d at 56; see Matter of Philips v
Commissioner of Correctional Servs., 65 AD3d 1407, 1408 [2009]).
Here, respondent appropriately considered the brutal nature of
petitioner's crimes, including the crimes of conviction as well
as his prior crimes, which involved gun-point robberies of other
victims (see 7 NYCRR 220.2 [c] [1]; see also Matter of Phillips v
Commissioner of Correctional Servs., 65 AD3d at 1408).
Respondent also properly considered petitioner's numerous prison
disciplinary violations, many of which involved violent and
disruptive conduct (see 7 NYCRR 220.2 [c] [1]; see also Matter of
Philips v Commissioner of Correctional Servs., 65 AD3d at 1408).1
These factors provided a rational basis for the denial of
petitioner's request to participate in the FRP. Although
respondent also relied upon petitioner's lack of commitment to


    1
        Even absent the disciplinary determination that was
administratively reversed and expunged, petitioner's disciplinary
history is extensive.
                              -3-                  518621

his marriage and concedes that the factual basis for this
consideration was not sufficiently explained, remittal is not
necessary as we do not invoke different grounds for upholding the
determination but adhere to the grounds relied upon for which
there is factual support (compare Matter of Bierenbaum v Goord,
13 AD3d 945, 946 [2004]). We have considered petitioner's
procedural and constitutional claims and find them to be
unavailing.

     Peters, P.J., Garry and Rose, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
