Opinion
09-28-2017
In the Matter of Dwayne MALAVE, Petitioner, v. Corey BEDARD, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Dwayne Malave, Attica, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Dwayne Malave, Attica, petitioner pro se.Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
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 Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.
During a search of petitioner's cell, a correction officer found documents related to a motorcycle club, including insignia and handwritten bylaws and rules. A different correction officer identified the materials as unauthorized gang materials, and petitioner was thereafter charged in a misbehavior report with possessing gang-related material. After a tier III disciplinary hearing, petitioner was found guilty of the charge, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, the seized documents, petitioner's admission that he possessed the documents and the testimony of a correction officer trained to identify gang materials provide substantial evidence supporting the determination of guilt (see Matter of McMaster v. Annucci, 138 A.D.3d 1289, 1289, 31 N.Y.S.3d 239 [2016], lv. denied 28 N.Y.3d 902, 2016 WL 4742537 [2016] ; Matter of Torres v. New York State Dept. of Corr. & Community Supervision, 130 A.D.3d 1122, 1122, 11 N.Y.S.3d 748 [2015] ). Contrary to petitioner's contention, his guilt is not precluded by the fact that some of the seized materials passed through the facility mailroom (see Matter of Chandler v. Annucci, 121 A.D.3d 1142, 1143, 992 N.Y.S.2d 908 [2014], lv. denied 25 N.Y.3d 901, 2015 WL 1334963 [2015] ; Matter of Arrington v. Venettozzi, 87 A.D.3d 1215, 1215–1216, 929 N.Y.S.2d 784 [2011] ). Further, by failing to renew his request to examine the seized materials, petitioner waived any objection as to reviewing those materials (see Matter of Dancy v. Goord, 58 A.D.3d 922, 923, 869 N.Y.S.2d 806 [2009] ; Matter of Gray v. Selsky, 37 A.D.3d 890, 890, 829 N.Y.S.2d 271 [2007] ). In addition, there is no indication in the record that the Hearing Officer was biased or that the determination flowed from any bias (see Matter of DeJesus v. Venettozzi, 145 A.D.3d 1275, 1276, 43 N.Y.S.3d 593 [2016], lv. denied 29 N.Y.3d 908, 2017 WL 2367345 [2017] ; Matter of Safford v. Annucci, 144 A.D.3d 1271, 1272–1273, 46 N.Y.S.3d 226 [2016], lv. denied 29 N.Y.3d 901, 2017 WL 1094364 [2017] ). Petitioner's constitutional challenge to the rule against possessing gang-related material is raised for the first time in his brief and is, therefore, unpreserved for our review (see Matter of Bottom v. Annucci, 26 N.Y.3d 983, 985, 19 N.Y.S.3d 209, 41 N.E.3d 66 [2015] ). Petitioner's remaining contentions have been examined and are without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
McCARTHY, J.P., GARRY, ROSE, DEVINE and AARONS, JJ., concur.