| Matter of Samuels v Department of Correctional Servs. Staff |
| 2011 NY Slip Op 04153 [84 AD3d 1629] |
| May 19, 2011 |
| Appellate Division, Third Department |
| In the Matter of Tyrone Samuels, Petitioner, v Departmentof Correctional Services Staff et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Greene County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
During a search of his cell, petitioner was found to be in possession of more than 100 pagesof Uniform Commercial Code (hereinafter UCC) documents and forms. He was subsequentlyfound guilty following a tier III disciplinary hearing of violating prison rules prohibiting inmatesfrom possessing such documentation and for not complying with facility correspondenceprocedures. After this determination was later upheld on administrative appeal, petitionerinitiated this CPLR article 78 proceeding.
Initially, respondents concede that the determination finding that petitioner violated facilitycorrespondence procedures was not supported by substantial evidence and should be annulled.Inasmuch as a loss of good time was imposed, the matter must be remitted to respondentCommissioner of Correctional Services for a redetermination of the penalty (see Matter of Ballou v New York StateDept. of Correctional Servs., 80 AD3d 1058, 1058 [2011]; Matter of Minton v Fischer, 73 AD3d1347, 1348 [2010], appeal dismissed 15 NY3d 848 [2010]). As for the charge thatpetitioner was not authorized to possess the UCC documents, we find no merit to his claim thatthis determination is not supported by substantial evidence. The [*2]misbehavior report and related documentation, together with thetestimony adduced at the hearing, including petitioner's admission that he possessed the UCCdocuments, provide substantial evidence that he violated this prison disciplinary rule (see Matter of Pertillar v Fischer, 64AD3d 1029, 1030 [2009]; see alsoMatter of Cornwall v Fischer, 72 AD3d 1364, 1365 [2010]).
While petitioner also argues that the UCC documents were improperly confiscated during thesearch of his cell, his challenge to that action appears to have been denied during the grievanceprocedure and petitioner has not challenged that decision as part of this CPLR article 78proceeding. His claim that the rule barring inmates from possessing UCC documents isunconstitutional (see 7 NYCRR 270.2 [14]) is not properly before us because it must firstbe raised in the context of the prison grievance procedure (see Matter of Welch v Taylor, 51 AD3d 1174, 1174 [2008]). Hisremaining arguments, to the extent that they are properly before us, have been considered and arelacking in merit.
Mercure, J.P., Peters, Spain, Kavanagh and Stein, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof failing to comply with facility correspondence procedures and imposed a penalty; petitiongranted to that extent, respondent Commissioner of Correctional Services is directed to expungeall references thereto from petitioner's institutional record and matter remitted to theCommissioner for an administrative redetermination of the penalty on the remaining violation;and, as so modified, confirmed.