Walton v. Selsky

Appellate Division of the Supreme Court of New York

Walton v. Selsky

251 A.D.2d 798, 674 N.Y.S.2d 790, 1998 N.Y. App. Div. LEXIS 6757

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 11, 1998

StatusPublished

Cited by2 cases

This text of 251 A.D.2d 798 (Walton v. Selsky) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Walton v. Selsky, 251 A.D.2d 798, 674 N.Y.S.2d 790, 1998 N.Y. App. Div. LEXIS 6757 (N.Y. Ct. App. 1998).

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Opinion

—Appeal from a judgment of the Supreme Court (Demarest, J.), entered September 8, 1997 in Franklin County, which partially granted petitioner’s application, in a proceeding pursuant to [799]*799CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty of violating prison disciplinary rules prohibiting inmates from possessing controlled substances and smuggling. He thereafter commenced this proceeding pursuant to CPLR article 78 and, based upon respondents’ concession that there was insufficient evidence to establish that the confiscated items were controlled substances, Supreme Court annulled that portion of the determination finding petitioner guilty of possessing a controlled substance but upheld the finding of guilt on the smuggling charge. Petitioner’s contention that respondents’ concession also required dismissal of the smuggling charge is unavailing. The applicable regulation prohibits smuggling of “any item” and is not drug-specific (7 NYCRR 270.2 [B] [15] [i]; see, Matter of Shakoor v Coughlin, 165 AD2d 917, appeal dismissed 77 NY2d 866). Finally, petitioner waived his challenge to the penalty of 24 months’ loss of visitation privileges by failing to raise the issue on administrative appeal (see, Matter of Lugo v Jones, 167 AD2d 636).

Mercure, J. P., Crew III, White, Yesawich Jr. and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Appeal from a judgment of the Supreme Court (Demarest, J.), entered September 8, 1997 in Franklin County, which partially granted petitioner’s application, in a proceeding pursuant to [799]*799CPLR article 78, to review a determination of the Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty of violating prison disciplinary rules prohibiting inmates from possessing controlled substances and smuggling. He thereafter commenced this proceeding pursuant to CPLR article 78 and, based upon respondents’ concession that there was insufficient evidence to establish that the confiscated items were controlled substances, Supreme Court annulled that portion of the determination finding petitioner guilty of possessing a controlled substance but upheld the finding of guilt on the smuggling charge. Petitioner’s contention that respondents’ concession also required dismissal of the smuggling charge is unavailing. The applicable regulation prohibits smuggling of “any item” and is not drug-specific (7 NYCRR 270.2 [B] [15] [i]; see, Matter of Shakoor v Coughlin, 165 AD2d 917, appeal dismissed 77 NY2d 866). Finally, petitioner waived his challenge to the penalty of 24 months’ loss of visitation privileges by failing to raise the issue on administrative appeal (see, Matter of Lugo v Jones, 167 AD2d 636).

Mercure, J. P., Crew III, White, Yesawich Jr. and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Bluebook (online)

251 A.D.2d 798, 674 N.Y.S.2d 790, 1998 N.Y. App. Div. LEXIS 6757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walton-v-selsky-nyappdiv-1998.

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