Opinion
528892
12-05-2019
In the Matter of Wallace DRAKE, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Wallace Drake, Elmira, petitioner pro se. Letitia James, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Wallace Drake, Elmira, petitioner pro se.
Letitia James, Attorney General, Albany (Julie M. Sheridan of counsel), for respondent.
Before: Garry, P.J., Clark, Mulvey and Aarons, JJ.
MEMORANDUM AND JUDGMENT 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 finding petitioner guilty of violating certain prison disciplinary rules.
An outgoing envelope was flagged by the correctional facility mailroom based upon the misspelled name and incorrect identification number of the inmate who allegedly sent the correspondence. Upon consent from the Superintendent of the correctional facility, the envelope was opened, revealing two small envelopes addressed to inmates in separate correctional facilities with letters inside, one of which allegedly discussed gang activities. Following an inquiry into the matter, petitioner was charged with impersonation, violating facility correspondence procedures and possessing gang-related material. Following a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. Initially, petitioner lacks standing to challenge the legitimacy of the procedures followed in opening the outgoing envelope given that his name did not appear as the return addressee (see Matter of Sudler v. Annucci, 166 A.D.3d 1351, 1352, 86 N.Y.S.3d 686 [2018] ; Matter of Odom v. Fischer, 65 A.D.3d 1425, 1426, 887 N.Y.S.2d 274 [2009] ). Next, we are unpersuaded by petitioner's contention that the Hearing Officer violated petitioner's due process rights to a fair and impartial hearing by denying him documentary evidence, inasmuch as the record reflects that the requested documents did not exist (see Matter of Cosme v. New York State Dept. of Corr. & Community Supervision, 168 A.D.3d 1327, 1329, 92 N.Y.S.3d 745 [2019] ; Matter of Davis v. Annucci, 155 A.D.3d 1191, 1192, 63 N.Y.S.3d 257 [2017] ). Finally, to the extent raised by petitioner, we find that the misbehavior report, related documentation and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Hyson v. Annucci, 171 A.D.3d 1339, 1340, 97 N.Y.S.3d 794 [2019] ; Matter of Davis v. Prack, 100 A.D.3d 1177, 1177–1178, 953 N.Y.S.2d 738 [2012], lv dismissed 22 N.Y.3d 910, 975 N.Y.S.2d 730, 998 N.E.2d 393 [2013] ).
Garry, P.J., Clark, Mulvey and Aarons, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.