DiRose v. Herbert

219 A.D.2d 852, 632 N.Y.S.2d 38, 1995 N.Y. App. Div. LEXIS 10951

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1995
• Status: Published

Opinion

Judgment unanimously affirmed without costs. Memorandum: Petitioner commenced this proceeding to compel respondent, the Superintendent of Collins Correctional Facility, to comply with a directive of the Department of Correctional Services allowing petitioner to correspond with his codefendant. Supreme Court properly denied the petition on the ground that petitioner failed to exhaust his administrative remedies. In any event, there is no merit to the petition. Although petitioner was granted permission to correspond with his codefendant, the regulations provide that authorization for inmate-to-inmate correspondence may be withdrawn at any time when it is demonstrated and documented that the safety, security, or good order of a facility is jeopardized, or that the safety or well being of any individual is jeopardized (7 NYCRR 720.6 [d] [2]). Additionally, inmate-to-inmate correspondence must not be sealed; if it is, it may be opened and returned to the inmate sender (7 NYCRR 720.6 [e]). Petitioner has failed to include in the record those items that he claims were returned to him and has not provided an affidavit from his codefendant regarding those items sent by the codefendant that allegedly were not delivered to petitioner or were returned. (Appeal from Judgment of Supreme Court, Erie County, Notaro, J. — CPLR art 78.) Present — Denman, P. J., Green, Wesley, Balio and Boehm, JJ.