Lazore v. Department of Taxation & Finance

59 A.D.3d 801, 873 N.Y.S.2d 761

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with smuggling, counterfeiting, violating facility correspondence rules and violating facility package rules. The report was issued after a letter that was sent by petitioner to an outside civilian was intercepted by Immigration & Customs Enforcement (hereinafter ICE).

* The letter, which was accompanied by tax stamps cut from the bottom of cigarette packs, set forth instructions on how to use the stamps to tag cigarette packs sold by Native Americans, before ultimately forwarding the cigarettes to petitioner. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Petitioner thereafter exhausted his administrative remedies and commenced this CPLR article 78 proceeding seeking annulment.

Petitioner argues that his constitutional rights were violated when the intercepted letter was seized from the outside civilian without proper permission. Petitioner, however, lacks standing to challenge the interception of mail sent to another person (see Matter of Kornegay v Goord, 21 AD3d 1236, 1237 [2005]). To the extent not specifically addressed herein, petitioner’s remaining contentions have been considered and are rejected.

Cardona, PJ., Mercure, Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Petitioner also named ICE as a respondent in this proceeding. On March 28, 2008, a notice of removal was filed by the United States Attorney’s Office on behalf of ICE pursuant to 28 USC § 1446 (a) removing this matter to the United States District Court for the Northern District of New York. On December 15, 2008, the District Court (Lazore v Immigration & Customs Enforcement, 2008 WL 5234315, 2008 US Dist LEXIS 101101 [2008, Sharpe, J.]) issued a decision granting ICE’s motion to dismiss the petition and remanded the remainder of the proceeding to Supreme Court. As a result, the matter is now properly before us with respect to the remaining state respondents.