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Arrollo v. Leclaire

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


May 21, 2009

IN THE MATTER OF RICHIE ARROLLO, PETITIONER,
v.
LUCIEN LECLAIRE, AS COMMISSIONER OF CORRECTIONAL SERVICES, 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: April 8, 2009

Before: Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following an anonymous tip, petitioner's cell was searched and officers found a sharpened metal rod and letters discussing drugs, killing and purported gang activity. As a result, petitioner was charged in a misbehavior report with, among other things, possession of a weapon and unauthorized organizational materials. Following a tier III disciplinary hearing, petitioner was found guilty of the enumerated charges. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

Petitioner claims that the misbehavior report did not support the charge of possessing unauthorized organizational materials. We disagree. The misbehavior report, hearing testimony and documentary evidence, which consisted of the letters themselves, provide substantial evidence to support the determination that petitioner was guilty of possessing unauthorized organizational materials (see Matter of Williams v Dubray, 57 AD3d 1185, 1185 [2008]; Matter of Thorpe v Fischer, 53 AD3d 1003, 1004 [2008]). In fact, petitioner admitted that one letter contained mention of "two known unauthorized groups." We have examined petitioner's remaining contentions and, to the extent preserved, find them to be unavailing.

Cardona, P.J., Peters, Rose, Kavanagh and McCarthy, JJ., concur.

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

20090521

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