State of New York Supreme Court, Appellate Division Third Judicial Department
April 25, 2013
IN THE MATTER OF JOHN COVINGTON, APPELLANT,
ADP HARFORD, AS ASSISTANT DEPUTY SUPERINTENDENT OF PROGRAMS AT CLINTON CORRECTIONAL FACILITY, RESPONDENT.
Appeal from a judgment of the Supreme Court (Lawliss, J.), entered June 13, 2012 in Clinton County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.
MEMORANDUM AND ORDER
Calendar Date: February 25, 2013
Before: Mercure, J.P., Stein, McCarthy and Egan Jr., JJ.
Petitioner commenced this CPLR article 78 proceeding to challenge a determination finding him guilty of violating four prison disciplinary rules. Supreme Court partially granted the petition by annulling the determination insofar as it found petitioner guilty of violating three of the rules and remitted for further proceedings. Petitioner now appeals and argues that the extant portion of the determination, which found him guilty of violating the prison disciplinary rule prohibiting the possession of alcohol, also should have been annulled.
We disagree and affirm. Petitioner raises contentions regarding whether the search of his cell that disclosed the alcohol was justified and, in turn, whether he was improperly denied the right to present evidence on that issue. Even assuming that these arguments are properly before us, "the basis for the search in the first instance was irrelevant to the issue of whether petitioner possessed the [alcohol]" and did not warrant exploration at the disciplinary hearing (Matter of Sweeter v Coughlin, 221 AD2d 741, 741 ; see Matter of Mullady v Bezio, 87 AD3d 765, 766 ).
Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed, without costs.
Robert D. Mayberger Clerk of the Court
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