Delos Santos v. Goord

4 A.D.3d 709, 772 N.Y.S.2d 615, 2004 N.Y. App. Div. LEXIS 2016

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2004
• 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 a prison disciplinary rule.

Petitioner, an inmate, was found guilty of violating the prison disciplinary rule that prohibits inmates from possessing unauthorized organizational material. The misbehavior report relates that when processing petitioner’s property upon his transfer from another facility, various photographs were confiscated from his photo album which contained gang-related hand gestures and statements written on the back. Contrary to petitioner’s assertion, the misbehavior report and seized photographs, as well as the testimony of a sergeant trained in such matters and who identified the signs and statements as gang-related, provide substantial evidence of petitioner’s guilt (see Matter of Knickerbocker v Goord, 276 AD2d 1008, 1009 [2000]; Matter of Sieteski v Dibiase, 242 AD2d 753 [1997]). Although petitioner asserts that the photographs do not constitute contraband in that they were either taken by prison officials or passed through the mailroom, such gang-related material is clearly prohibited by the prison disciplinary rule (see 7 NYCRR 105.12; Matter of Johnson v Goord, 260 AD2d 816 [1999]; Matter of Sieteski v Dibiase, supra at 753; Matter of Jenkins v Senkowski, 221 AD2d 779, 779 [1995]; but see Matter of Morrero v Coombe, 236 AD2d 887, 888 [1997]).

Mercure, J.E, Spain, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.