| Matter of McKethan v Bezio |
| 2009 NY Slip Op 00610 [59 AD3d 762] |
| February 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of William McKethan, Petitioner, v Norman Bezio,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff 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.
Petitioner, a prison inmate, was found guilty following a tier III disciplinary hearing ofcreating a disturbance. That charge was set forth in a misbehavior report which indicated thatpetitioner, while housed in the special housing unit, had yelled threats from his cell to an inmatein another cell. After petitioner exhausted his administrative remedies, he commenced this CPLRarticle 78 proceeding seeking annulment.
Initially, we agree with petitioner that Supreme Court should not have transferred this matterto this Court inasmuch as the petition does not appear to raise a question of substantial evidence(see Matter of Cargill v Goord, 29AD3d 1255, 1256 n [2006]). That notwithstanding, we will retain jurisdiction and considerthe merits in the interest of judicial economy (see id.).
We find unavailing petitioner's contention that he is entitled to annulment because he hadnever been provided with a copy of the special housing unit regulations manual and, therefore,was unaware that he could not yell out from his cell to another cell. Petitioner was not [*2]charged with or found guilty of violating any rules contained in thespecial housing unit regulations manual. To the contrary, petitioner was charged with and foundguilty of violating rule 104.13 of the standards of inmate behavior, which plainly prohibitsconduct that disturbs the order of the facility (see 7 NYCRR 270.2 [B] [5] [iv]).Accordingly, we confirm the determination of guilt.
Rose, J.P., Kane, Malone Jr., Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.