| Matter of Davis v Bezio |
| 2010 NY Slip Op 05316 [74 AD3d 1615] |
| June 17, 2010 |
| Appellate Division, Third Department |
| In the Matter of Claude E. Davis Jr., Petitioner, v NormanR. Bezio, as Director 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 three letters written by petitioner addressed to other inmates and labeled as legal mailwere found in a mail bag that was not located inside the prison's law library, petitioner wascharged in a misbehavior report with violating the correspondence procedures and providingunauthorized legal assistance. Following a tier III disciplinary hearing, petitioner was foundguilty of the charges. Petitioner was unsuccessful on his administrative appeal and thereaftercommenced this CPLR article 78 proceeding.
The misbehavior report contained detailed information regarding the correspondence,including the facts that it was labeled as legal mail and was found in a "B2 mail bag" in violationof the policy that legal mail must be sent from the law library. The report also indicates that theletters involved legal work prepared by petitioner on behalf of other inmates and was not thetype of legal assistance provided by law library clerks. At the disciplinary hearing, in response tothe Hearing Officer's questioning, petitioner admitted that he was the author of thecorrespondence. [*2]The fact that the letters constituted legalassistance was not disputed. Accordingly, we find that the information in the misbehavior reportand petitioner's testimony at the hearing provide substantial evidence to support thedetermination of guilt (see Matter ofJohnson v Goord, 42 AD3d 626, 627 [2007]; Matter of Faraldo v Senkowski,275 AD2d 833 [2000]). Although petitioner now claims that he was authorized to provide legalassistance to those inmates, that issue is not preserved for review inasmuch as he did not raise itat the hearing (see Matter of Madison vCunningham, 67 AD3d 1141, 1142 [2009]). Petitioner's claim that the Hearing Officerfailed to interview the author of the misbehavior report and to obtain certain documentaryevidence is also unpreserved. Finally, petitioner's claim that he had complied with thecorrespondence policy by leaving the letters in an appropriate, yet unsecured, location in the lawlibrary and that someone else had taken the letters and placed them in the B2 mail bag raised acredibility question for the Hearing Officer to resolve (see Matter of Edwards v Leclaire, 71 AD3d 1199 [2010]; Matter of Hayes v Fischer, 70 AD3d1085, 1086 [2010]).
Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.