| Matter of Garcia v Selsky |
| 2008 NY Slip Op 01471 [48 AD3d 931] |
| February 21, 2008 |
| Appellate Division, Third Department |
| In the Matter of Edwin Garcia, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondents.
Cardona, P.J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Ulster County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating a prison disciplinary rule.
After a search of petitioner's prison cell resulted in the discovery of 29 identificationcard-size photographs of petitioner, as well as his prison identification photograph, he wascharged with violating several prison disciplinary rules. Following a tier III hearing, petitionerwas found guilty of possession of contraband, but not guilty of the other charges. Thedetermination was affirmed upon administrative review, prompting the commencement of thisCPLR article 78 proceeding.
Significantly, all items possessed by inmates, unless they have been "specifically authorized"by the superintendent or the local rules of the facility, constitute contraband (7 NYCRR 270.2[B] [14] [xiii]). Here, petitioner contends that he was provided with his prison identificationphotograph by a Department of Correctional Services counselor and, therefore, he [*2]was authorized to possess it. However, that claim was refuted bythe counselor at the hearing, thus raising a credibility issue for the Hearing Officer to resolve (see Matter of Ackridge v Ekpe, 43AD3d 509, 509 [2007]; Matter ofAgosto v Selsky, 39 AD3d 1106, 1107 [2007]). In any event, regardless of petitioner'sarguments concerning his prison identification photograph, notably, he fails to address hispossession of the 29 other photographs that the Hearing Officer determined to be contraband.Inasmuch as the misbehavior report, hearing testimony, petitioner's admission to possessing thephotographs and the confiscated material provided substantial evidence to support the finding ofguilt, we find no basis to disturb the Hearing Officer's determination (see Matter of Coleman v Selsky, 40AD3d 1328, 1328-1329 [2007]; Matter of Burgess v Goord, 30 AD3d 877, 878 [2006]; Matter of Therrien v Goord, 20 AD3d838, 838-839 [2005]).
Next, we do not agree with petitioner's argument that the prison disciplinary rule at issueherein (see 7 NYCRR 270.2 [B] [14] [xiii]) is too vague to give him notice that thephotographs constituted contraband (see Matter of Hughes v Goord, 300 AD2d 789,789-790 [2002]; Matter of Gittens v Coughlin, 184 AD2d 812, 813 [1992]).
Finally, we have considered petitioner's remaining contentions, including his assertion thatthe appeal process is futile because he served his time in "keeplock" prior to the resolution of hisadministrative appeal (see Matter of Beyah v Scully, 143 AD2d 903, 903 [1988]), andfind them to be unpersuasive.
Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.