| Matter of Bermudez v Fischer |
| 2008 NY Slip Op 08056 [55 AD3d 1099] |
| October 23, 2008 |
| Appellate Division, Third Department |
| In the Matter of Isaias Bermudez, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Malone Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review (1) a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules and (2) three determinations of the CentralOffice Review Committee which denied petitioner's grievances.
Petitioner was charged in a misbehavior report with stalking, harassment and possession ofcontraband after three drawings were found on his cell wall that depicted semi-nude women resemblingtwo female correction officers employed at the facility in which he was housed. Following a tier IIIdisciplinary hearing, petitioner was found guilty as charged. That determination was modified onadministrative appeal, dismissing the finding of guilt for stalking, and the penalty imposed was modifiedaccordingly. Petitioner then commenced this CPLR article 78 proceeding challenging the determination.
The misbehavior report, together with the hearing testimony of its author and the female correctionofficers depicted in the drawings, provide substantial evidence to support the determination findingpetitioner guilty of harassment (see Matter of Jean-Laurent v David, 51 [*2]AD3d 1229, 1230 [2008], appeal dismissed 11 NY3d 769[2008]; Matter of Martin v Goord, 46AD3d 1294, 1295 [2007]). Although petitioner argues that the determination finding him guilty ofpossession of contraband is not supported by the evidence because inmates are permitted to possessdrawing materials, here the alleged contraband was the offending drawings themselves, which were not"specifically authorized" by the facility superintendent, but which petitioner admits were made andpossessed by him (7 NYCRR 270.2 [B] [14] [xiii]). Thus, substantial evidence also supports thedetermination of guilt with respect to that charge (see Matter of Garcia v Selsky, 48 AD3d 931, 931-932 [2008],appeal dismissed 10 NY3d 909 [2008]; Matter of Therrien v Goord, 20 AD3d 838, 838 [2005]). We are notpersuaded by petitioner's contentions that he was denied his right to submit evidence at the hearing, theHearing Officer was biased or the disposition was not rendered in a timely manner.
Petitioner also contests determinations that denied three grievances he filed in August 2007pertaining to limited access to the law library while he was confined in special housing, facility radioprogramming and harassment.[FN*] Initially, we note that where petitioner was unable to personally access the law library because ofdisciplinary measures, the directive limiting two items daily was not arbitrary and capricious and had arational basis (see Matter of Cabassa vGoord, 40 AD3d 1281, 1281 [2007]; Matter of Cliff v Brady, 290 AD2d 895, 896[2002], lv dismissed and denied 98 NY2d 642 [2002]). Moreover, the review committeestated that petitioner could request increased access for upcoming legal deadlines. With regard topetitioner's challenges to the determinations on his remaining grievances, they must be dismissed asmoot inasmuch as petitioner has since been transferred from the facilities where the grievances arose(see Matter of Medina v New York StateDept. of Correctional Servs., 43 AD3d 1236, 1236 [2007]; Matter of Lou v Brown, 38 AD3d1138, 1138 [2007]).
Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Adjudged that the determinations areconfirmed, without costs, and petition dismissed.
Footnote *: Although Supreme Court improperlytransferred that part of the proceeding seeking review of the three determinations denying petitioner'sgrievances (see Matter of Atkins vGoord, 16 AD3d 1011, 1012 [2005]; see e.g. Matter of Whaley v Goord, 47 AD3d 1132 [2008]), we willretain jurisdiction with respect to these determinations in the interest of judicial economy.