Jenkins v. Goord

30 A.D.3d 719, 815 N.Y.S.2d 491

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 8, 2006
• 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.

During a routine search of petitioner’s cell, a correction officer found certain documentation that appeared to be related to membership in a gang. As a result, he was charged in a misbehavior report with possessing unauthorized organizational material and was found guilty of the charge following a tier III disciplinary hearing. After the determination was affirmed on administrative appeal, this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, confiscated documentation and hearing testimony, which included that of an individual trained in interpreting gang-related material, provide substantial evidence supporting the determination of guilt (see Matter of Smith v Selsky, 273 AD2d 661 [2000]; Matter of Maya v Goord, 272 AD2d 724, 725 [2000], lv denied 96 NY2d 704 [2001]). Although the misbehavior report incorrectly stated that the confiscated material consisted of nine pages, the author of the report testified that he miscounted the number of pages and accurately identified the documentation as that found in petitioner’s cell. Petitioner’s remaining arguments, to the extent they are properly before us, have been examined and found to lack merit.

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