| Matter of McCollum v Fischer |
| 2009 NY Slip Op 02873 [61 AD3d 1194] |
| April 16, 2009 |
| Appellate Division, Third Department |
| In the Matter of Vincent McCollum, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, 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 respondent which foundpetitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with violating the prison disciplinary rule thatprohibits the possession of contraband after a search of his belongings disclosed, among otherthings, a lighter. Following a tier III disciplinary hearing, petitioner was found guilty and apenalty was imposed. Petitioner's administrative appeal was unsuccessful, prompting him tocommence this CPLR article 78 proceeding seeking to annul the determination of guilt.
Petitioner contends that his due process rights were violated because prison disciplinary rule113.23 (see 7 NYCRR 270.2 [B] [14] [xiii]) is unconstitutionally vague and otherwisefailed to afford him sufficient notice that the items he was charged with possessing constitutedcontraband. Preliminarily, petitioner neglected to raise his constitutional claim at the disciplinaryhearing and, therefore, this issue is not preserved for our review (see generally Matter of Hamilton vGoord, 32 AD3d 642, 643 [2006], lv denied 7 NY3d 715 [2006]). Turning tothe merits, rule 113.23 clearly states that any article not "specifically authorized" by the facilitysuperintendent, his or her designee, or departmental or local facility rules constitutes contraband(see Matter of Garcia v Selsky, 48AD3d 931 [2008], appeal dismissed 10 NY3d 909 [2008]; Matter of Jenkins vSenkowski, 221 AD2d 779 [1995]). Thus, the fact that the cited rule did not expresslyprohibit the items that petitioner was charged with possessing is of no moment. Similarly, thefact that petitioner was unaware that this rule precluded him from possessing the contesteditems—either at all or in the manner in which he did—does not alter thedetermination of guilt (see Matter of Jenkins v Senkowski, supra; see also Matter ofHughes v Goord, 300 AD2d 789, 790 [2002]). Accordingly, respondent's determination isconfirmed.
Cardona, P.J., Mercure, Spain, Kane and Stein, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.