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Umoja v. Bezio

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


July 23, 2009

IN THE MATTER OF PIRU UMOJA, PETITIONER,
v.
NORMAN R. BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: June 10, 2009

Before: Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

After a search of his cell revealed a letter from another inmate highlighting the importance of a chain of command and the use of caution when recruiting other prisoners into a particular gang, petitioner was charged in a misbehavior report with violating the prison disciplinary rule that prohibits possession of gang-related materials. He was found guilty of the charge following a tier III disciplinary hearing and a penalty was imposed. The determination was upheld on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The confiscated letter, misbehavior report and testimony from the authoring correction officers, both of whom were trained in the identification of gang-related materials, provide substantial evidence of petitioner's guilt (see Matter of Sweat v Fischer, 52 AD3d 1142, 1142 [2008]). Contrary to petitioner's assertions, he was not entitled to hear confidential testimony regarding the ongoing investigation that led to the search of his cell (see Matter of Rickson v Leclaire, 46 AD3d 1050, 1051 [2007]; Matter of Tusa v Goord, 287 AD2d 907, 908 [2001], appeal dismissed 98 NY2d 646 [2002]), and the misbehavior report "provided identifying information and the factual basis for the charge[] with sufficient particularity to allow [him] to prepare a defense" (Matter of Maya v Goord, 272 AD2d 724, 725 [2000], lv denied 96 NY2d 704 [2001]). Petitioner's remaining contentions, including that his employee assistant was inadequate and that the Hearing Officer was biased, have been reviewed and are determined to be without merit.

Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ., concur.

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

20090723

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