Opinion
2013-12-5
In the Matter of Luis ROSALES, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Luis Rosales, Ossining, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Luis Rosales, Ossining, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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 which found petitioner guilty of violating certain prison disciplinary rules.
An outgoing piece of mail bearing petitioner's return address and inmate identification number was returned to the correctional facility for lack of proper postage. A civilian mail clerk opened it and discovered a concealed packet containing an unknown powdery substance glued to a greeting card. Although the substance tested negative for drugs, petitioner was charged in a misbehavior report with smuggling and violating facility correspondence procedures. Following a tier III disciplinary hearing, he was found guilty of the charges. The determination was later affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.
We confirm. The misbehavior report, related documentation and testimony of the mail clerk and correction sergeant who was notified of the incident provide substantial evidence supporting the determination of guilt ( see Matter of Smith v. Prack, 98 A.D.3d 780, 781, 949 N.Y.S.2d 806 [2012]; Matter of Kairis v. Fischer, 54 A.D.3d 462, 463, 862 N.Y.S.2d 646 [2008] ). Petitioner's claim that he did not send the letter, but was set up by another inmate with whom he had had a previous argument, presented a credibility issue for the Hearing Officer to resolve ( see Matter of Smith v. Fischer, 108 A.D.3d 987, 988, 969 N.Y.S.2d 245 [2013]; Matter of Povataj v. Bezio, 84 A.D.3d 1658, 1659, 923 N.Y.S.2d 914 [2011], lv. denied17 N.Y.3d 709, 2011 WL 4089868 [2011] ). Petitioner has not preserved his claim that he was improperly denied certain witnesses as he did not put these objections on the record at the hearing ( see Matter of Tucci v. Selsky, 94 A.D.3d 1294, 1295, 943 N.Y.S.2d 239 [2012] ). Therefore, we find no reason to disturb the determination of guilt.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed. ROSE, J.P., McCARTHY, SPAIN and EGAN JR., JJ., concur.