Opinion
January 11, 1996
Appeal from the Supreme Court, Clinton County.
As a result of a letter thought to have been written by petitioner, he became the target of an investigation for gang-related activity and the subject of a disciplinary report for engaging in unauthorized organizational activities. Petitioner commenced this proceeding challenging the determination finding him guilty of unauthorized organizational activities for his gang-related activity with the Latin Kings. Contrary to petitioner's contention, the disciplinary report clearly advises petitioner that his prison involvement with the Latin King gang was the basis of the unauthorized organizational activities charge. The confidential testimony and documentary evidence clearly provides the substantial evidence necessary to sustain the determination ( see, Matter of Volgarino v Coughlin, 173 A.D.2d 939).
We find no merit to petitioner's procedural contentions. Initially, we observe that they were not preserved at the hearing ( see, Matter of Campanale v Coughlin, 214 A.D.2d 902; Matter of Smith v Coughlin, 191 A.D.2d 783, lv denied 82 N.Y.2d 653). The failure of a second correction officer witnessing the search of petitioner's cell to sign the misbehavior report was only a technical violation of the regulation from which no prejudice flowed ( see, Matter of Smith v Walker, 209 A.D.2d 799, lv denied 85 N.Y.2d 807; Matter of Smith v Coughlin, 170 A.D.2d 845). Similarly without merit is petitioner's contention that his punishment was unduly harsh. Petitioner failed to raise any claim of error on his administrative appeal with respect to his penalty ( see, Matter of Lugo v Jones, 167 A.D.2d 636). Considering the threat to prison security resulting from gang-related activities, we do not find the severe penalty here to be so disproportionate to the offense as to be shocking to one's sense of fairness ( see, Matter of Pell v Board of Educ., 34 N.Y.2d 222).
Cardona, P.J., Mercure, White and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.