| Matter of Montes v Bezio |
| 2010 NY Slip Op 09612 [79 AD3d 1567] |
| December 30, 2010 |
| Appellate Division, Third Department |
| In the Matter of Danny Montes, Petitioner, v Norman Bezio, as Directorof Special Housing and Inmate Disciplinary Programs, 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 Supreme Court,entered in Albany County) to review a determination of the Commissioner of Correctional Serviceswhich found petitioner guilty of violating certain prison disciplinary rules.
Petitioner attempted to send outgoing mail to his mother from the correctional facility where he wasconfined. Correction officials suspected that it contained contraband and, after obtaining the facilitySuperintendent's authorization, the mail was opened. Inside the envelope, there were two letters, one topetitioner's mother and a second to an inmate at another correctional facility, with instructions topetitioner's mother that she send the second letter to the inmate. Petitioner was subsequently charged ina misbehavior report with smuggling and violating facility correspondence procedures. Following a tierIII disciplinary hearing, he was found guilty of the charges and the determination was affirmed onadministrative appeal. This CPLR article 78 proceeding ensued.
We confirm. Contrary to petitioner's claim, we find that proper authorization was obtained from thefacility Superintendent prior to opening petitioner's mail, based upon the suspicious nature of theenvelope (see 7 NYCRR 720.3 [e] [1]; see also Matter of Lozada v Fischer, 68 AD3d 1306, [*2]1306 [2009], lv denied 14 NY3d 704 [2010]; Matter of Devivo v Bezio, 63 AD3d1489, 1490 [2009]). Notably, the envelope contained prohibited third-party correspondence toanother inmate that petitioner admitted trying to send. This, together with the misbehavior report, thetestimony of the correction sergeant who authored it and the confiscated letters, provide substantialevidence supporting the determination of guilt (see Matter of Lozada v Fischer, 68 AD3d at1306; Matter of Devivo v Bezio, 63 AD3d at 1490). Petitioner's remaining argument lacksmerit.
Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.