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In the Matter of Jermel Arrington v. D. Venettozzi

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


September 22, 2011

IN THE MATTER OF JERMEL ARRINGTON, PETITIONER,
v.
D. VENETTOZZI, AS DIRECTOR OF SPECIAL HOUSING
AND INMATE DISCIPLINARY PROGRAMS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: July 27, 2011

Before: Spain, J.P., Malone Jr., Kavanagh, Garry 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 a prison disciplinary rule.

After a search of petitioner's cell revealed letters that included gang references, he was served with a misbehavior report charging him with possession of gang materials. Petitioner was found guilty of that charge following a tier III disciplinary hearing. That determination was affirmed on administrative appeal with a reduction in the penalty assessed. Petitioner then commenced this CPLR article 78 proceeding.

We confirm. The seized letters, along with the misbehavior report, petitioner's admissions during the hearing and the testimony of a correction officer specially trained to identify gang-related materials, provide substantial evidence of petitioner's guilt (see Matter of Flournoy v Bezio, 84 AD3d 1636, 1637 [2011]; Matter of Wheeler-Whichard v Fischer, 69 AD3d 1286, 1286 [2010]). Petitioner's assertion that his guilt is precluded by the fact that the letters had passed through the mailroom is unavailing, as his possession of such gang-related material is clearly prohibited by the prison disciplinary rule regardless of how it came into his possession (see 7 NYCRR 270.2 [B] [6] [iv]; Matter of Delos Santos v Goord, 4 AD3d 709, 710 [2004]; Matter of Johnson v Goord, 260 AD2d 816, 817 [1999]). Finally, we find that the determination resulted from the evidence presented, rather than any alleged hearing officer bias (see Matter of Montgomery v Fischer, 84 AD3d 1666, 1667 [2011]).

Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.

Spain, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110922

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