State of New York Supreme Court, Appellate Division Third Judicial Department
November 12, 2009
IN THE MATTER OF KERRY PORTER, PETITIONER,
DONALD SELSKY, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: September 30, 2009
Before: Cardona, P.J., Mercure, Rose, Kavanagh and Stein, 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 certain prison disciplinary rules.
Petitioner, a prisoner, was served with a misbehavior report charging him with, among other things, violating the prison disciplinary rules that prohibit possession of stamps in excess of $20 in value, possession of an article in an area where its use or possession is prohibited, and smuggling. Following a tier III disciplinary hearing, he was found guilty of the enumerated charges. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report and petitioner's admissions during the hearing provide substantial evidence to support the determination (see Matter of Wilcox v Fischer, 63 AD3d 1494, 1494-1495 ; Matter of Moore v Fischer, 63 AD3d 1401 ). Indeed, petitioner admitted to possessing stamps in his cell, the value of which exceeded $20. He further testified that, because he forgot that the stamps were under his mattress when his belongings were packed for transfer from another facility, they were not on the transfer list and he carried them into his current facility in his pocket.
Cardona, P.J., Mercure, Rose, Kavanagh and Stein, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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