Mercado v. Selsky

47 A.D.3d 1167, 850 N.Y.S.2d 299

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2008
• 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

A search of petitioner’s prison cell recovered materials containing references to a particular gang. As a result, petitioner was charged in a misbehavior report with possessing unauthorized organization material. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged. That determination was affirmed upon administrative review, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report, confiscated materials and hearing testimony from a correction officer with specialized training in unauthorized organizations comprise substantial evidence to support the determination of guilt (see Matter of Jenkins v Goord, 30 AD3d 719, 720 [2006]). Contrary to petitioner’s assertion, the restriction of his possession of materials related to the gang does not violate his 1st Amendment rights “inasmuch as it is reasonably related to the legitimate penological interest of maintaining prison security” (Matter of Buford v Goord, 258 AD2d 761, 762 [1999]; see Matter of Lucas v Scully, 71 NY2d 399, 405 [1988]; Matter of Tenace v Goord, 278 AD2d 549, 550 [2000], lv denied 96 NY2d 707 [2001]). Petitioner’s remaining contentions, including his claim that facility personnel should have screened his mail and intercepted the materials before they were delivered to him, have been considered and are without merit.

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