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Odom v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


September 24, 2009

IN THE MATTER OF JONATHAN ODOM, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 3, 2009

Before: Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ.

Appeal from a judgment of the Supreme Court (Sackett, J.), entered September 23, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

Correction officials at the correctional facility where petitioner is incarcerated discovered a suspicious piece of outgoing mail which set forth the name of an inmate who had been transferred out of the facility as the return addressee. After obtaining the consent of the Superintendent of the facility, the Deputy of Security opened the envelope and determined that its contents belonged to petitioner. As a result, petitioner was charged in a misbehavior report with impersonation and failure to comply with facility correspondence procedures.*fn1 At the conclusion of a tier III disciplinary hearing, he was found guilty of violating facility correspondence procedures. The determination was later affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding and, following joinder of issue, Supreme Court dismissed the petition. This appeal ensued.

We affirm. Initially, we note that petitioner lacks standing to challenge the manner in which the envelope was opened given that he was not listed as the return addressee (see Matter of Alvarez v Goord, 17 AD3d 945, 946 [2005]). In addition, we find no merit to his claim that he was improperly removed from the hearing inasmuch as he became disruptive and uncooperative during the proceedings notwithstanding the Hearing Officer's prior warning (see Matter of Jackson v Fischer, 59 AD3d 820, 820-821 [2009]; Matter of Pitts v Fischer, 54 AD3d 477 [2008]). Contrary to petitioner's assertion, the record discloses that the Hearing Officer examined the writing on the envelope prior to rendering a disposition. In view of the foregoing, we conclude that Supreme Court properly dismissed the petition.

Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur.

ORDERED that the judgment is affirmed, without costs.


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