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Devaughn v. Bezio

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


July 1, 2010

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

MEMORANDUM AND JUDGMENT

Calendar Date: May 12, 2010

Before: Cardona, P.J., Peters, Rose, 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After an authorized mail watch revealed letters that discussed ongoing business operations and made threats to various individuals, petitioner, a prison inmate, was served with a misbehavior report charging him with making threats and violating correspondence rules. He was found guilty of those charges following a tier III disciplinary hearing and his administrative appeal was unsuccessful. Petitioner then commenced this CPLR article 78 proceeding and we confirm.

The misbehavior report, confidential evidence and testimony and petitioner's own admissions that he authored the letters in question provide substantial evidence to support the determination of guilt (see Matter of Smiton v New York State Dept. of Correctional Servs., 70 AD3d 1148, 1149 [2010]; Matter of Hayes v Fischer, 70 AD3d 1085, 1085-1086 [2010]). Petitioner's claims that he was not currently involved in operating the business and that the misbehavior report was given to him in retaliation for not cooperating with the Inspector General's office as an informant raised credibility issues to be resolved by the Hearing Officer (see Matter of Quartieri v New York State Dept. of Correctional Servs., 70 AD3d 1071, 1072 [2010]; Matter of Robertson v Fischer, 70 AD3d 1081 [2010]). With regard to petitioner's contention that the incriminating letters were not intercepted during the time that the mail watch was in effect, the confidential testimony established otherwise. Finally, petitioner's challenge to the authorization for the mail watch was not raised during the hearing and was, therefore, not preserved for our review (see Matter of Moore v Fischer, 63 AD3d 1401, 1401 [2009]).

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

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

20100701

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