OPINION OF THE COURT
When petitioner first entered the work release program, he lived at the Queensborough Correctional Facility. Soon afterwards he obtained permanеnt employment and switched to a "Five and Two” schedule, that is, spending five nights at home and two nights per week at the facility. By April 1996, petitioner was on a "Seven and Zero” schedule, that is, he lived permanently at home and only reported to the correctional facility twice a week to meet with his counselor and parole officer. At some time during that period, he was transferred from Queensborough Correctional Facility to Lincoln Correctional Facility.
According to the verifiеd answer, on May 20, 1996, petitioner submitted a specimen of his urine for analysis to determine whether or not he had used controlled substances. After analysis, the urine samplе was found positive for cocaine. Petitioner was charged with two violations, use of controlled substance and failure to comply with temporary releаse program rules. On June 14, 1996, Hearing Officer Deputy Superintendent Harrison conducted a tier III Superintendent’s hearing at Lincoln Correctional Facility. Petitioner plеaded not guilty but was found guilty of the temporary release violation and the controlled substance violation. Penalties imposing 30-day restrictions, loss of phone privileges, loss of commissary privileges and loss of good-time days, were also recommended as was a referral to the "TRC”, i.e., the Temporary Release Cоmmittee.
Section 855 (9) of the Correction Law provides, in pertinent part, as follows: "Participation in a temporary relеase program shall be a privilege. Nothing contained in this article may be construed to confer upon any inmate the right to participate, or to cоntinue to participate, in a temporary release program.”
7 NYCRR 1904.1 (a) provides as follows: "Participation in the temporary release program is a privilege. An inmate does not have the right to participate, or to continue to participate, in the temporary release programming. A superintendent may at any time revoke an inmate’s participation in the temporary release program, and upon the recommendation of the temporary release committee, the commissioner, or the chairman of the board of parole or his designee, shall revoke an inmate’s privilege to participate in the temporary release program.” (Emphasis added.)
Petitioner was removed from the work release program by the Temporary Release Committee at a meеting from which petitioner was excluded pursuant to 7 NYCRR 1904.2 (i) (section of the Temporary Release Manual). The only notice of the TRC hearing petitioner receivеd was at the Superintendent’s hearing (tier III) on June 14, 1996 where the Hearing Officer stated without further detail that his case would be referred to the "TRC”.
In Sandin v Conner (
Procedural due process questions are analyzed in two steps. The first asks whether there exists a liberty or property interest which has been interfered with by the State. Such protected interest may arise either directly from the Due Proсess Clause of the US Constitution or from the laws of the State. (Hewitt v Holmes,
In Sandin (supra), the Supreme Court shifted the focus of the liberty interest analysis to one based on the nature of the deprivation, rather than one based on the language of a partic
In this case, petitioner argues that the sudden revocation of his work release privileges imposes an atypical and significant hardship upon him in light of the legitimate expectations to which a prisoner accorded such conditional liberty could reasonably be expected to possess. This court agrees that petitioner’s removal from seven days a week outside the prison walls to full-time incarceration constitutes a substantial disruption of his environment under Sandin (supra). It is hаrd to imagine a greater disruption in one’s life than the change from living and working in the community to life behind prison walls. (Accord, Roucchio v Coughlin,
This cаse and the cases cited above are distinguishable from cases cited by respondent which involved prisoners who had never participated in a tempоrary release program. (See, e.g., Hong Ki Lee v Governor of State of N. Y.,
As the type of punishment imposed is an "atypical and significant hardship” on the prisoner, it must be determined whether State law has creatеd a constitutionally protectable liberty interest. (Sandin v Conner,
Prior to Sandin (supra), the Second Circuit Court of Appeals in Tracy v Salamack (572 F2d 393, 396 [2d Cir 1978]) held that the State of New York, by creating the temporary release
Thus, petitioner’s removal from work release deprived him of a liberty interest and the denial to him оf any participation at a hearing requires vacating the decision. As New York State regulations do not currently provide for a hearing, this court will not remand the issuе but rather hereby orders that a hearing will take place before this court within 90 days on the issue of whether petitioner’s removal from the work release program was arbitrary and capricious.
Notes
. As the court has found that New York State created a liberty interest by petitioner’s seven days a week participation in the work release program, the court need not determine whether the deprivation also triggered inherent due process rights such as in the case in parole rеvocations. (See, e.g., Morrissey v Brewer,
. At oral argument petitioner withdrew his timeliness argument.