| Matter of Devivo v Bezio |
| 2009 NY Slip Op 05243 [63 AD3d 1489] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anthony Devivo, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 certain prison disciplinary rules.
After facility mailroom staff noticed that a piece of correspondence from petitioner, aninmate, was addressed to the family member of another inmate, permission was obtained fromthe superintendent of the facility to open the envelope. Contained in the envelope was atwo-page letter to an inmate in another facility, and a short note to that inmate's daughter, askingher to make sure the inmate received the letter. Petitioner was thereafter charged in amisbehavior report with violating facility correspondence procedures. Following a tier IIIdisciplinary hearing, petitioner was found guilty. Petitioner's unsuccessful administrative appealprompted this CPLR article 78 proceeding seeking annulment.
We confirm. To the extent that the petition can be construed as challenging thedetermination of guilt on the ground that it was not supported by substantial evidence, we findthat the misbehavior report, together with the confiscated letters and petitioner's admission at thehearing, provide the necessary evidence (see Matter of Ponder v Fischer, 56 AD3d 1094, 1094[*2][2008]; Matter of Cortorreal v Goord, 41 AD3d 1048, 1048 [2007]).
Petitioner further contends that the determination must be annulled inasmuch as correctionofficials did not obtain the proper authorization to open his mail. However, pursuant to 7NYCRR 720.3 (e) (1), outgoing inmate mail may be opened upon proper authorization from thesuperintendent when "there is a reason to believe that the provisions of any department directive,rule or regulation have been violated." Furthermore, 7 NYCRR 720.3 (b) (3) requires advanceapproval of inmate mail directed to inmates in other state correctional facilities. Here we find noimpropriety, inasmuch as the record contains the written authorization form signed by thefacility's superintendent based on the suspicion that petitioner was "kiting," or seeking tocommunicate with an inmate in another facility by sending correspondence through a thirdperson without prior approval (seeMatter of Cooper v Selsky, 34 AD3d 1133, 1133-1134 [2006]; Matter of Knight v McGinnis, 10AD3d 754, 755 [2004]).
Cardona, P.J., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.