| Matter of Odom v Fischer |
| 2009 NY Slip Op 06611 [65 AD3d 1425] |
| September 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jonathan Odom, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Sackett, J.), entered September 23, 2008 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent finding petitioner guilty of violating a prisondisciplinary rule.
Correction officials at the correctional facility where petitioner is incarcerated discovered asuspicious piece of outgoing mail which set forth the name of an inmate who had beentransferred out of the facility as the return addressee. After obtaining the consent of theSuperintendent of the facility, the Deputy of Security opened the envelope and determined thatits contents belonged to petitioner. As a result, petitioner was charged in a misbehavior reportwith impersonation and failure to comply with facility correspondence procedures.[FN*]At the conclusion of a tier III disciplinary hearing, he was found guilty of violating facilitycorrespondence procedures. The determination was later affirmed on administrative appeal.Petitioner then [*2]commenced this CPLR article 78 proceedingand, following joinder of issue, Supreme Court dismissed the petition. This appeal ensued.
We affirm. Initially, we note that petitioner lacks standing to challenge the manner in whichthe envelope was opened given that he was not listed as the return addressee (see Matter of Alvarez v Goord, 17AD3d 945, 946 [2005]). In addition, we find no merit to his claim that he was improperlyremoved from the hearing inasmuch as he became disruptive and uncooperative during theproceedings notwithstanding the Hearing Officer's prior warning (see Matter of Jackson v Fischer, 59AD3d 820, 820-821 [2009]; Matterof Pitts v Fischer, 54 AD3d 477 [2008]). Contrary to petitioner's assertion, the recorddiscloses that the Hearing Officer examined the writing on the envelope prior to rendering adisposition. In view of the foregoing, we conclude that Supreme Court properly dismissed thepetition.
Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.
Footnote *: The misbehavior reportmistakenly set forth the wrong rule violation number for the charge of impersonation, but thisdefect is insignificant given that petitioner was found not guilty of this charge.