Opinion
525937
11-21-2018
In the Matter of Ijal SUDLER, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Ijal Sudler, Dannemora, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Ijal Sudler, Dannemora, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Aarons, JJ.
MEMORANDUM AND JUDGMENT
Motion for reargument or, in the alternative, for permission to appeal to the Court of Appeals.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion for reargument is granted, without costs, the memorandum and judgment decided and entered June 21, 2018 is vacated, and the attached memorandum and judgment is substituted therefor; and it is further
ORDERED that the motion for permission to appeal to the Court of Appeals is denied, without costs.
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.
As a mailroom clerk was processing mail being sent out of the cellblock where petitioner was housed, she noticed that the name of an inmate who was not housed in that cellblock was the return addressee on an envelope addressed to an outside third party. She brought the envelope to the Superintendent of the facility and he gave her verbal permission to open it. Inside was a letter referencing the Social Security numbers and dates of birth of two inmates, which the sender urged the recipient to use to file fraudulent tax returns. A few days later, the mailroom clerk noticed another envelope with petitioner's name as the return addressee that contained handwriting similar to that which appeared on the first envelope. The mailroom clerk gave this second envelope to the addressee, a correction lieutenant, who opened it. An investigation ensued, during which petitioner's handwriting was analyzed, resulting in a misbehavior report charging petitioner with multiple prison disciplinary violations. Following a lengthy tier III hearing, he was found guilty of solicitation, possessing stolen property and violating facility correspondence procedures. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We note that the proceeding was properly transferred to this Court inasmuch as the petition raised the issue of substantial evidence (see
Petitioner's sole claim is that the Superintendent did not provide written authorization pursuant to Department of Corrections and Community Supervision Directive No. 4422 (III) (B) (9) (see 7 NYCRR 720.3 [e] ) for opening the outgoing envelopes that led to the investigation implicating him as the sender. Significantly, the letters in the envelopes provided the basis for all of the disciplinary rule violations of which petitioner was found guilty. However, inasmuch as the first envelope listed the name of another inmate as the return addressee, petitioner lacks standing to challenge the opening of the envelope and the legitimacy of the procedures followed with respect thereto (see Matter of Odom v. Fischer, 65 A.D.3d 1425, 1426, 887 N.Y.S.2d 274 [2009] ; Matter of Alvarez v. Goord, 17 A.D.3d 945, 946, 793 N.Y.S.2d 630 [2005] ).As to the second envelope, authorization was unnecessary because it was opened by the person to whom such envelope was addressed. Accordingly, petitioner's claim is without merit.
Egan Jr., J.P., Lynch, Clark and Mulvey and Aarons, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Matter of McDay v. Annucci, 156 A.D.3d 1082, 1083, 65 N.Y.S.3d 463 [2017] ; Matter of Benitez v. Annucci, 139 A.D.3d 1215, 1215, 29 N.Y.S.3d 831 [2016] ). Petitioner, however, abandoned such issue by failing to make an argument with respect thereto in his brief (see Matter of Garcia v. Smith , 78 A.D.3d 1362, 1363 n., 910 N.Y.S.2d 388 [2010] ).