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Moss v. Bezio

State of New York Supreme Court, Appellate Division Third Judicial Department


June 25, 2009

IN THE MATTER OF KENNETH MOSS, PETITIONER,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 13, 2009

Before: Cardona, P.J., Spain, 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 the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was an inmate representative on the Inmate Grievance Review Committee at the correctional facility where he was incarcerated. Acting without authorization, he provided an affirmation to another inmate to assist the inmate with a grievance he had filed. As a result, he was charged in a misbehavior report with violating the prison disciplinary rule prohibiting unauthorized exchanges (see 7 NYCRR 270.2 [b] [14] [v]). He was found guilty of the charge following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with petitioner's own testimony in which he admitted to providing the subject document to the other inmate, and the testimony of that inmate provide substantial evidence supporting the determination of guilt (see Matter of Harrison v Bertone, 51 AD3d 1350 [2008]; Matter of Davis v Smith, 32 AD3d 1096, 1097 [2006]). Due to his failure to raise it at the disciplinary hearing or in his administrative appeal, petitioner has not preserved his claim that the document at issue did not constitute an "article" within the meaning of 7 NYCRR 270.2 (b) (14) (v) (see Matter of Davis v Burge, 55 AD3d 1162 [2008]). In any event, were we to consider it, we would find it to be without merit inasmuch as this rule has been applied to the unauthorized exchange of documents (see Matter of Kalwasinski v Goord, 25 AD3d 1050 [2006]; Matter of Petrucco v Barkley, 260 AD2d 705 [1999]). Petitioner's remaining contentions are unpreserved for our review given his failure to raise them at the disciplinary hearing.

Cardona, P.J., Spain, Malone Jr., Kavanagh and Garry, JJ., concur.

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

20090625

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