| Matter of Lebron v Artus |
| 2008 NY Slip Op 01665 [48 AD3d 993] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Elvin Lebron, Petitioner, v Dale Artus, asSuperintendent of Clinton Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), forrespondent.
Spain, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Clinton County) to review three determinations of respondent which,among other things, found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, was found guilty following a tier II hearing in October 2005 ofpossession of authorized articles in an unauthorized area. Following a separate tier II hearing inDecember 2005, petitioner was found guilty of making false statements, being out of place,violating facility regulations regarding movement and leaving an assigned area. In a third matter,petitioner had previously been given authorization to correspond with two other inmates housedin different correctional facilities but, in 2003, that authorization was withdrawn due to the factthat his correspondence contained inappropriate content pursuant to 7 NYCRR 720.6 (d) (2).Petitioner reapplied for authorization in 2005, but the application was denied in a determinationdenying his grievance. All three determinations were affirmed on administrative appeal,prompting petitioner to commence this proceeding pursuant to CPLR article 78 to review them.
Initially, as the Attorney General advised this Court, during the pendency of this proceeding,the October 2005 determination finding petitioner guilty of possession of authorized [*2]articles in an unauthorized area was administratively reversed andall references thereto were expunged from petitioner's institutional record. Inasmuch as petitionerhas been afforded all the relief to which he is entitled, the petition, to the extent it seeks review ofthis determination, is dismissed as moot (see Matter of Kuletsky v Selsky, 41 AD3d 1124, 1124 [2007]; Matter of Roman v Goord, 41 AD3d1102, 1102 [2007]).
Turning to the determination stemming from the December 2005 tier II hearing, themisbehavior report and the testimony at the hearing constitute substantial evidence in support ofthe determination finding petitioner guilty of making false statements, being out of place,violating facility regulations regarding movement and leaving an assigned area. On the day inquestion, petitioner failed to report to his assigned work area at his scheduled time, and a searchof the facility ensued. Petitioner reported to work 90 minutes later, claiming he had call-out slipswhich allowed him to go to the notary public, but a check of facility records by a correctionofficer revealed that petitioner only had call-out slips for the law library, which had expired.Although petitioner argues that he had followed proper procedure and received permission to goto the notary, this created a credibility question for the Hearing Officer to resolve (see Matter of Brown v Katz, 26 AD3d559, 560 [2006]; Matter of Abdul-Matiyn v Commissioner, State of N.Y., Dept. ofCorrectional Servs., 250 AD2d 1009, 1010 [1998]). Moreover, petitioner was not improperlydenied documentary evidence as the documents he requested were unavailable (see Matter of Young v Selsky, 32AD3d 598, 598 [2006]; Matter ofRincon v Selsky, 28 AD3d 565, 566 [2006]). Petitioner's remaining contentionsconcerning this determination, to the extent preserved, have been considered and found to bewithout merit.
On review of the denial of petitioner's grievance related to his application for authorization tocorrespond with other inmates which was denied based upon his prior violation of the privilege,we find that respondent stated adequate reasons for the denial (see 7 NYCRR 720.6 [d][1]).
Mercure, J.P., Peters, Lahtinen and Malone Jr., JJ., concur. Adjudged that the petition, to theextent that it challenges the October 2005 determination, is dismissed, as moot, without costs.Adjudged that the December 2005 determination is confirmed, without costs, and petition, to theextent it challenges that determination, dismissed. Adjudged that the determination denyingpetitioner's inmate-to-inmate correspondence application is confirmed, without costs, andpetition, to the extent it challenges that determination, dismissed.