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McKethan v. Bezio

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 5, 2009

IN THE MATTER OF WILLIAM MCKETHAN, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: December 18, 2008

Before: Rose, J.P., Kane, Malone Jr., Kavanagh and Stein, JJ.

MEMORANDUM AND JUDGMENT

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 Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty following a tier III disciplinary hearing of creating a disturbance. That charge was set forth in a misbehavior report which indicated that petitioner, while housed in the special housing unit, had yelled threats from his cell to an inmate in another cell. After petitioner exhausted his administrative remedies, he commenced this CPLR article 78 proceeding seeking annulment.

Initially, we agree with petitioner that Supreme Court should not have transferred this matter to this Court inasmuch as the petition does not appear to raise a question of substantial evidence (see Matter of Cargill v Goord, 29 AD3d 1255, 1256 n [2006]). That notwithstanding, we will retain jurisdiction and consider the merits in the interest of judicial economy (see id.).

We find unavailing petitioner's contention that he is entitled to annulment because he had never been provided with a copy of the special housing unit regulations manual and, therefore, was unaware that he could not yell out from his cell to another cell. Petitioner was not charged with or found guilty of violating any rules contained in the special housing unit regulations manual. To the contrary, petitioner was charged with and found guilty of violating rule 104.13 of the standards of inmate behavior, which plainly prohibits conduct that disturbs the order of the facility (see 7 NYCRR 270.2 [B] [5] [iv]). Accordingly, we confirm the determination of guilt.

Rose, J.P., Kane, Malone Jr., Kavanagh and Stein, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20090205

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