| Matter of Devaughn v Bezio |
| 2010 NY Slip Op 05821 [75 AD3d 673] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Alex Devaughn, Petitioner, v Norman R.Bezio, as Director of Special Housing and Inmate Disciplinary Programs, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Martin A. Hotvet of counsel), forrespondents.
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 an authorized mail watch revealed letters that discussed ongoing business operationsand made threats to various individuals, petitioner, a prison inmate, was served with amisbehavior report charging him with making threats and violating correspondence rules. Hewas found guilty of those charges following a tier III disciplinary hearing and his administrativeappeal was unsuccessful. Petitioner then commenced this CPLR article 78 proceeding and weconfirm.
The misbehavior report, confidential evidence and testimony and petitioner's ownadmissions that he authored the letters in question provide substantial evidence to support thedetermination of guilt (see Matter ofSmiton v New York State Dept. of Correctional Servs., 70 AD3d 1148, 1149 [2010]; Matter of Hayes v Fischer, 70 AD3d1085, 1085-1086 [2010]). Petitioner's claims that he was not currently involved in operatingthe business and that the misbehavior report was given to him in retaliation for not cooperatingwith the Inspector General's office as an informant raised credibility issues to be resolved by theHearing Officer (see Matter of Quartieriv New York State Dept. of Correctional Servs., 70 AD3d 1071, 1072[*2][2010]; Matter of Robertson v Fischer, 70 AD3d 1081 [2010]). Withregard to petitioner's contention that the incriminating letters were not intercepted during thetime that the mail watch was in effect, the confidential testimony established otherwise. Finally,petitioner's challenge to the authorization for the mail watch was not raised during the hearingand was, therefore, not preserved for our review (see Matter of Moore v Fischer, 63 AD3d 1401, 1401 [2009]).
Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.