Alicea v. Fischer

106 A.D.3d 1342, 965 N.Y.S.2d 390

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2013
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County), to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

After an area search of the special housing unit uncovered two pieces of incoming mail in petitioner’s cell, he was charged in a misbehavior report with a facility correspondence violation and possessing gang-related material. Following a tier III disciplinary hearing, he was found guilty of both charges. That determination was upheld upon administrative review, and petitioner thereafter commenced this CPLR article 78 proceeding.

The misbehavior report, together with testimony indicating that the confiscated letters contained gang-related references, constitute substantial evidence supporting the determination of guilt (see Matter of Smith v Prack, 98 AD3d 780, 781 [2012]; Matter of Alicea v Fischer, 94 AD3d 1316, 1317 [2012], lv denied 19 NY3d 809 [2012]). The record reflects that petitioner was allowed to call all relevant witnesses and received adequate employee assistance (see Matter of Jones v Fischer, 101 AD3d 1197, 1197 [2012]; Matter of Burr v Fischer, 100 AD3d 1313, 1313 [2012], lv denied 20 NY3d 857 [2013]). His remaining contentions have been considered and are without merit.

Peters, EJ, Rose, Spain and Garry, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.