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In the Matter of Danny Montes v. Norman Bezio

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


December 30, 2010

IN THE MATTER OF DANNY MONTES, PETITIONER,
v.
NORMAN BEZIO, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

Decided and Entered: December 30, 2010

MEMORANDUM AND JUDGMENT

Calendar Date: November 3, 2010

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

Egan Jr., 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 attempted to send outgoing mail to his mother from the correctional facility where he was confined. Correction officials suspected that it contained contraband and, after obtaining the facility Superintendent's authorization, the mail was opened. Inside the envelope, there were two letters, one to petitioner's mother and a second to an inmate at another correctional facility, with instructions to petitioner's mother that she send the second letter to the inmate. Petitioner was subsequently charged in a misbehavior report with smuggling and violating facility correspondence procedures. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Contrary to petitioner's claim, we find that proper authorization was obtained from the facility Superintendent prior to opening petitioner's mail, based upon the suspicious nature of the envelope (see 7 NYCRR 720.3 [e] [1]; see also Matter of Lozada v Fischer, 68 AD3d 1306, 1306 [2009], lv denied 14 NY3d 704 [2010]; Matter of Devivo v Bezio, 63 AD3d 1489, 1490 [2009]). Notably, the envelope contained prohibited third-party correspondence to another inmate that petitioner admitted trying to send. This, together with the misbehavior report, the testimony of the correction sergeant who authored it and the confiscated letters, provide substantial evidence supporting the determination of guilt (see Matter of Lozada v Fischer, 68 AD3d at 1306; Matter of Devivo v Bezio, 63 AD3d at 1490). Petitiner's remaining argument lacks merit.

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

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

ENTER:

Robert D. Mayberger Clerk of the Court

20101230

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