| Matter of Lozada v Fischer |
| 2009 NY Slip Op 09119 [68 AD3d 1306] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of Carlos Lozada, 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 certain prison disciplinary rules.
As the result of an authorized mail watch, correction officials discovered letters frompetitioner to inmates in other correctional facilities secreted in a letter sent by petitioner to hisdaughter. Based on this discovery, petitioner was charged in a misbehavior report with failing tocomply with correspondence procedures, smuggling, impersonation, providing legal assistanceto another inmate and making an unauthorized exchange. Following a tier III disciplinaryhearing, petitioner was found guilty of smuggling, impersonation and failing to comply withcorrespondence procedures, and found not guilty of the remaining charges. This determinationwas affirmed on administrative appeal, prompting this CPLR article 78 proceeding.
We confirm. The misbehavior report, together with the correspondence intercepted throughthe mail watch and the hearing testimony, provide substantial evidence to support thedetermination (see Matter of Knight vMcGinnis, 14 AD3d 984 [2005]). Contrary to petitioner's contention, the writtenauthorization for the mail watch signed by the facility Superintendent satisfied the requirementsof 7 NYCRR 720.3 (e) (1) (see Matterof Devivo v Bezio, 63 AD3d 1489, 1490 [2009]). Moreover, the Hearing Officer wasnot required to independently assess the credibility of the confidential information that promptedthe mail watch, [*2]as that information was not considered indetermining petitioner's guilt (seeMatter of Muller v Fischer, 62 AD3d 1191, 1191-1192 [2009]; Matter of Kirby v Leclaire, 47 AD3d1174, 1175 [2008]). Petitioner's remaining claims are either unpreserved for our review orwithout merit.
Mercure, J.P., Peters, Lahtinen, Kane and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.