| Matter of Avery v Goord |
| 2008 NY Slip Op 02062 [49 AD3d 993] |
| March 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Leon Avery, Petitioner, v Glenn Goord, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Andrew B. Ayers of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review two determinations of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with violating the prison disciplinary rulesthat prohibit fighting and assaulting another inmate. Petitioner also was charged in a secondmisbehavior report with possession of contraband that may be classified as a weapon. Theseviolations stemmed from an incident wherein petitioner engaged in a fight with his cellmate andstabbed his cellmate in the cheek with a pen. Following separate tier III disciplinary hearings,petitioner was found guilty of all charges and administrative penalties were imposed including,insofar as is relevant to the instant proceeding, nine months in the special housing unit and acorresponding loss of privileges and recommended loss of good time with respect to thedetermination of guilt on the contraband charge. These determinations were affirmed uponadministrative appeal, prompting petitioner to commence this proceeding pursuant to CPLRarticle 78.
As a starting point, we agree with petitioner that the determination finding him guilty ofpossession of contraband that may be classified as a weapon (see 7 NYCRR 270.2 [B][14] [i]) is not supported by substantial evidence. Although respondent contends that petitionerwaived this argument by failing to raise it at the disciplinary hearing, the fact remains that thecharge cannot [*2]be sustained absent evidence that the penconstituted contraband, i.e., an article not "specifically authorized by the superintendent ordesignee" (7 NYCRR 270.2 [B] [14] [xiii]; see Matter of Tumminia v Coughlin, 175AD2d 383, 385 [1991]; see also Matter of Lamage v Selsky, 304 AD2d 1004, 1004-1005[2003]; cf. Matter of Gonzalez v Selsky, 294 AD2d 734, 735 [2002]; Matter ofSimmons v Goord, 255 AD2d 939, 940 [1998]; Matter of Varela v Coughlin, 199AD2d 1007, 1008 [1993]). Respondent appears to acknowledge that the pen confiscated frompetitioner's cell "was officially issued by the prison" and, in any event, no evidence was presentedat the disciplinary hearing to show that the pen was an unauthorized article. Accordingly, thedetermination of guilt as to this charge is annulled. In light of this conclusion, we need notaddress petitioner's alternate claim—namely, that the pen in question was not under hispossession and/or control.
Petitioner's remaining contentions do not warrant extended discussion. While it appears thatthe misbehavior report charging petitioner with fighting and assault was not endorsed by theauthoring correction officer, petitioner did not raise this issue at the administrative hearing and,hence, it has not been preserved for our review (see Matter of Patterson v Coombe, 236AD2d 682 [1997]). Moreover, the date and time of the incident, as well the officer's rank andname, appear on the face of the report and, as such, we are unable to discern any prejudice topetitioner. Contrary to petitioner's assertion, such report, together with the testimony of theinvestigating officer, provides substantial evidence to support the determination of guilt. Finally,petitioner's claim that he was denied the right to an administrative appeal is belied by thedocuments contained in the record on review, and his assertion that the penalties imposed wereunduly harsh and/or improper has been reviewed and found to be lacking in merit.
Cardona, P.J., Peters, Rose, Kane and Malone Jr., JJ., concur. Adjudged that the May 19,2006 determination is annulled, without costs, petition granted to that extent and respondent isdirected to expunge all references thereto from petitioner's institutional record and restore anyloss of good time. Adjudged that the June 26, 2006 determination is confirmed, without costs,and petition dismissed to that extent.