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Santana v. Fischer

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


November 10, 2010

IN THE MATTER OF JOSE SANTANA, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 29, 2010

Before: Mercure, J.P., Spain, Malone Jr., 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.

While an authorized mail watch was in effect, petitioner, a prison inmate, was discovered to have sent letters to his sister containing gang information and which she was to forward to other incarcerated gang members. As a result, petitioner was served with a misbehavior report and, after a tier III disciplinary hearing, was found guilty of gang activity and violating facility correspondence procedures. That determination was administratively affirmed, prompting this CPLR article 78 proceeding.

We confirm. The misbehavior report, testimony of the correction officer who examined petitioner's mail and authored the misbehavior report and copies of the letters provide substantial evidence to support the determination (see Matter of Lozada v Fischer, 68 AD3d 1306, 1306 [2009], lv denied 14 NY3d 704 [2010]; Matter of Lebron v Selsky, 53 AD3d 962, 962 [2008]). Contrary to petitioner's contention, the authorized mail watch contained a sufficient basis, including specific facts, to satisfy the requirements of 7 NYCRR 720.3 (e) (1) (see Matter of Lozada v Fischer, 68 AD3d at 1306; Matter of Devivo v Bezio, 63 AD3d 1489, 1490 [2009]). We have examined petitioner's remaining contention and find it to be without merit.

Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ., concur.

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

20101110

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