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In the Matter of Melvin C. Lewis v. William R. Lape

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


December 15, 2011

IN THE MATTER OF MELVIN C. LEWIS, PETITIONER,
v.
WILLIAM R. LAPE, AS SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Mercure, Acting P.J.

MEMORANDUM AND JUDGMENT

Calendar Date: October 17, 2011

Before: Mercure, Acting P.J., Malone Jr., Stein, 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 (1) three determinations of respondent Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules, and (2) a determination of the Central Office Review Committee which denied petitioner's grievance.

Petitioner, a prison inmate, was charged in three misbehavior reports with violating various prison disciplinary rules, several of which relate to the unauthorized possession of Uniform Commercial Code (hereinafter UCC) materials. Following three tier III disciplinary hearings, petitioner was found guilty of all charges, and those determinations were thereafter upheld upon administrative review. Petitioner also filed a grievance challenging the departmental regulations pertaining to UCC materials, which was ultimately denied by the Central Office Review Committee. He then commenced this CPLR article 78 proceeding challenging all four determinations.*fn1

We confirm. With regard to petitioner's grievance, we conclude that the rules and regulations pertaining to UCC materials (see 7 NYCRR 720.4 [d] [7]; 721.2 [b] [6]; 721.3 [a] [2]) were timely filed with the Secretary of State's office. Furthermore, those rules and regulations do not violate either the US or NY Constitution, inasmuch as they are reasonably related to the penological interest of preventing harm to innocent victims of unauthorized filings, and the objective being promoted outweighs the minimal burden of requiring prisoners to receive permission prior to obtaining UCC materials for legitimate purposes (see Turner v Safley, 482 US 78, 89-90 [1987]; Matter of Lucas v Scully, 71 NY2d 399, 405-406 [1988]). Accordingly, the denial of petitioner's grievance was not arbitrary and capricious or without a rational basis (see Matter of Lopez v Fischer, 83 AD3d 1230, 1231 [2011], lv denied 17 NY3d 709 [2011]).

Turning to petitioner's procedural contentions regarding the disciplinary hearings, we reject his assertion that he was improperly denied his right to call the superintendent of the facility as a witness. The subject of the proposed testimony was irrelevant to the proceedings (see Matter of Bunting v Fischer, 85 AD3d 1473, 1474 [2011], lv denied 17 NY3d 712 [2011]; Matter of Demarta v Prack, 85 AD3d 1475, 1476 [2011]). Petitioner's remaining contentions were not raised at the hearings and are thus unpreserved for our review (see Matter of Evans v Bezio, 84 AD3d 1622, 1623 [2011]; Matter of Abreu v Fischer, 83 AD3d 1348, 1348-1349 [2011]).

Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur.

ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court


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