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Agosta v. Unger

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


November 12, 2009

IN THE MATTER OF REYNALDO S. AGOSTA, PETITIONER,
v.
DAVID UNGER, AS SUPERINTENDENT OF WYOMING CORRECTIONAL FACILITY, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Peters, J.P., Rose, Kane, Stein 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, was charged in a misbehavior report with, among other things, possession of an item in an unauthorized area and possession of contraband after a test answer key in his handwriting was found in another inmate's folder. Following a tier II disciplinary hearing, petitioner was found guilty of the enumerated charges. The determination was affirmed on administrative appeal, and petitioner thereafter commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, the copy of the answer key, petitioner's admissions that he had written the key and put it in his folder and the testimony of the correction counselor that petitioner was not authorized to have the key provide substantial evidence to support the determination of petitioner's guilt (see Matter of Moore v Fischer, 63 AD3d 1401, 1401 [2009]; Matter of Pena v Selsky, 53 AD3d 938, 938-939 [2008]). Petitioner's remaining contentions are unpreserved for our review.

Peters, J.P., Rose, Kane, Stein and Garry, JJ., concur.

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

20091112

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