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In re Madison

Supreme Court of New York, Third Department

July 18, 2013

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

Calendar Date: June 6, 2013

Ortez Madison, Alden, petitioner pro se.

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

Before: Rose, J.P., Lahtinen, Stein and Egan Jr., 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 a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with possession of gang materials after a frisk of his cell disclosed four gang-related pictures and a letter. Following a tier III disciplinary hearing, petitioner was found guilty of the charge. That determination was upheld on petitioner's administrative appeal, prompting the commencement of this CPLR article 78 proceeding.

We confirm. Contrary to petitioner's argument, the misbehavior report and the testimony of a sergeant trained in recognizing gang-related material constitute substantial evidence supporting the determination (see Matter of Smith v Fischer, 100 A.D.3d 1314, 1314 [2012]; Matter of Gittens v Fischer, 100 A.D.3d 1121, 1121 [2012]). Additionally, petitioner's assertion that the confiscated items were not gang-related and the sergeant's interpretation of the meanings was mistaken presented a credibility issue to be resolved by the Hearing Officer (see Matter of Rodriguez v Fischer, 96 A.D.3d 1333, 1333 [2012]). Moreover, even accepting petitioner's claim that the items had previously been searched and also reviewed by the mail room without incident, this would not alter the fact that "the material is nonetheless prohibited by the prison disciplinary rule" (Matter of Smith v Fischer, 100 A.D.3d at 1314).

Finally, petitioner's remaining contentions are not properly before us inasmuch as they were not raised in the petition (see Matter of Pigmentel v Selsky, 19 A.D.3d 816, 817 [2005]; Matter of Reid v Goord, 14 A.D.3d 950, 951 [2005]).

Rose, J.P., Lahtinen, Stein and Egan Jr., JJ., concur.

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


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