Opinion
2012-11-29
In the Matter of Kevin SMITH, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Kevin Smith, Alden, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Kevin Smith, Alden, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondent.
Before: MERCURE, J.P., ROSE, MALONE JR., KAVANAGH and GARRY, JJ.
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 which found petitioner guilty of violating a disciplinary rule.
Petitioner, an inmate, was found guilty of violating a disciplinary rule prohibiting possession of gang-related material. The misbehavior report states that during a search of petitioner's property upon his transfer from another facility, a photograph showing a gang-related hand gesture, 12 pages of material containing language consistent with a gang and two envelopes with names associated with a gang were confiscated. Contrary to petitioner's contentions, the misbehavior report, the seized material and the testimony of a sergeant and a correction officer who were both trained in recognizing gang-related material constitute substantial evidence supporting the determination ( see Matter of Flournoy v. Bezio, 84 A.D.3d 1636, 1637, 923 N.Y.S.2d 304 [2011];Matter of Wheeler–Whichard v. Fischer, 69 A.D.3d 1286, 1286, 896 N.Y.S.2d 483 [2010] ). Although petitioner asserts that the photograph and other materials had been reviewed and found to be unobjectionable by the facility from which he transferred, the material is nonetheless prohibited by the prison disciplinary rule ( see Matter of Arrington v. Venettozzi, 87 A.D.3d 1215, 1215–1216, 929 N.Y.S.2d 784 [2011];Matter of Delos Santos v. Goord, 4 A.D.3d 709, 710, 772 N.Y.S.2d 615 [2004] ). Finally, a correction officer at petitioner's former facility provided a statement disputing his claim that he never received the revised rule book containing the rule of which he was found guilty, creating a credibility question that the Hearing Officer was entitled to resolve against petitioner ( see Matter of Rogers v. Fischer, 96 A.D.3d 1318, 1318–1319, 947 N.Y.S.2d 222 [2012] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.