De La Rosa v. Goord

260 A.D.2d 824, 688 N.Y.S.2d 750, 1999 N.Y. App. Div. LEXIS 4035

Opinion

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits inmates from possessing unauthorized organizational material. The charge was based upon letters, written by petitioner’s son, discussing petitioner’s participation in the Latin Kings (a Hispanic gang) and a picture of a lion with gold crown stickers affixed to the corner which were discovered during a search of petitioner’s cell. While petitioner denied being affiliated with the Latin Kings, his son’s letters specifically noted petitioner’s membership in the gang.

This evidence, together with the inferences to be drawn therefrom, provide substantial evidence to support the determination that the material was gang related (see, e.g., Matter of Rivera v Coombe, 231 AD2d 790, 791; see generally, Matter of Garcia v Goord, 251 AD2d 887). Petitioner’s explanation for possessing the materials presented a credibility issue for resolution by the Hearing Officer (see, Matter of Devodier v Selsky, 241 AD2d 737).

Furthermore, having failed to raise the issue at the hearing or on administrative appeal, petitioner’s contention that the Hearing Officer allegedly consulted with someone off the record before making the determination is not preserved for our review (see, Matter of Murphy v Selsky, 239 AD2d 724, 725). In any event, were we to consider this issue, we would find no record support for petitioner’s conclusory allegation.

Mikoll, J. P., Crew III, Yesawich Jr., Peters and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.