| Matter of Mercado v Selsky |
| 2008 NY Slip Op 00584 [47 AD3d 1167] |
| January 31, 2008 |
| Appellate Division, Third Department |
| In the Matter of Israel Mercado, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Commissioner of CorrectionalServices which found petitioner guilty of violating a prison disciplinary rule.
A search of petitioner's prison cell recovered materials containing references to a particulargang. As a result, petitioner was charged in a misbehavior report with possessing unauthorizedorganization material. A tier III disciplinary hearing ensued, at the conclusion of which petitionerwas found guilty as charged. That determination was affirmed upon administrative review,prompting petitioner to commence this CPLR article 78 proceeding.
We confirm. The misbehavior report, confiscated materials and hearing testimony from acorrection officer with specialized training in unauthorized organizations comprise substantialevidence to support the determination of guilt (see Matter of Jenkins v Goord, 30 AD3d 719, 720 [2006]).Contrary to petitioner's assertion, the restriction of his possession of materials related to the gangdoes not violate his 1st Amendment rights "inasmuch as it is reasonably related to the legitimatepenological interest of maintaining prison security" (Matter of Buford v Goord, 258AD2d 761, 762 [1999]; see Matter of Lucas v Scully, 71 NY2d 399, 405 [1988];Matter of Tenace v Goord, 278 AD2d 549, 550 [2000], lv denied 96 NY2d 707[2001]). Petitioner's [*2]remaining contentions, including hisclaim that facility personnel should have screened his mail and intercepted the materials beforethey were delivered to him, have been considered and are without merit.
Mercure, J.P., Spain, Carpinello, Rose and Kane, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.