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In re Alicea

Supreme Court of New York, Third Department

May 23, 2013

In the Matter of RALPH ALICEA, Petitioner,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: April 3, 2013

Ralph Alicea, Malone, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Before: Peters, P.J., Rose, Spain and Garry, JJ.

MEMORANDUM AND JUDGMENT

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.

After an area search of the Special Housing Unit uncovered two pieces of incoming mail in petitioner's cell, he was charged in a misbehavior report with a facility correspondence violation and possessing gang-related material. Following a tier III disciplinary hearing, he was found guilty of both charges. That determination was upheld upon administrative review, and petitioner thereafter commenced this CPLR article 78 proceeding.

The misbehavior report, together with testimony indicating that the confiscated letters contained gang-related references, constitute substantial evidence supporting the determination of guilt (see Matter of Smith v Prack, 98 A.D.3d 780, 781 [2012]; Matter of Alicea v Fischer, 94 A.D.3d 1316, 1317 [2012], lv denied 19 N.Y.3d 809 [2012]). The record reflects that petitioner was allowed to call all relevant witnesses and received adequate employee assistance (see Matter of Jones v Fischer, 101 A.D.3d 1197, 1197 [2012]; Matter of Burr v Fischer, 100 A.D.3d 1313, 1313 [2012], lv denied 20 N.Y.3d 857 [2013]). His remaining contentions have been considered and are without merit.

Peters, P.J., Rose, Spain and Garry, JJ., concur.

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


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