Marhone v. Conroy — 145 A.D.3d 1281

Majority

p. 1281

In the Matter of Conrad Marhone, Petitioner, v W. Conroy, as Correction Officer at Attica Correctional Facility, Respondent.

[42 NYS3d 688]

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 Corrections and Community Supervision finding petitioner guilty of violating a prison disciplinary rule.

p. 1282

Petitioner was charged in a misbehavior report with violating facility correspondence rules, smuggling and solicitation. The charges stemmed from petitioner mailing an envelope to respondent, a correction officer who worked as the facility property officer, containing two letters addressed to the facility steward and the inmate records coordinator. Following a tier III disciplinary hearing, petitioner was found guilty of violating facility correspondence rules and the other charges were dismissed. That determination was affirmed on administrative review, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, documentary evidence and the hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Tafari v Annucci, 137 AD3d 1356 , 1357 [2016]; Matter of Rodriguez v Fischer, 120 AD3d 855 , 855 [2014]). Regarding inmate correspondence, “[a]n inmate shall not include any written material in outgoing mail not specifically intended for the addressee identified on the exterior of the envelope” (7 NYCRR 720.3 [p]). Respondent testified that he received an envelope addressed to him through the facility mail system, containing the letters addressed to the other parties. Petitioner’s contention, that he should not have been found guilty because respondent admittedly did not save the exterior envelope, is unavailing. Petitioner admitted to writing the letters and argued at the hearing that, rather than sending them to respondent, he sent them in an envelope addressed to the facility superintendent. Therefore, even accepting petitioner’s version of the events, his conduct still violated the correspondence rules. In light of this, we find no error in the Hearing Officer’s denial of certain witnesses whose testimony would have been irrevelant (see Matter of Hayes v Fischer, 123 AD3d 1266 , 1267 [2014]; Matter of Grant v Rock, 122 AD3d 1225 , 1226 [2014]).

Finally, for the reasons stated in Matter of Marhone v Schuck ( 142 AD3d 1232 [2016]), we reject petitioner’s contention that Supreme Court abused its discretion in denying his motion to consolidate this proceeding with a separate proceeding challenging an unrelated disciplinary determination. Petitioner’s remaining claims have been cpnsidered and found to be without merit.

Garry, J.P., Egan Jr., Lynch, Rose and Devine, JJ., concur.

Adjudged that the determination is confirmed, without costs, and petition dismissed.

Cases cited

Tafari v. Annucci 137 AD3d 1356 N.Y. App. Div. 2016-03-03 at 1357 p. 1282
Rodriguez v. Fischer 120 AD3d 855 N.Y. App. Div. 2014-08-07 at 855 p. 1282
Hayes v. Fischer 123 AD3d 1266 N.Y. App. Div. 2014-12-11 at 1267 p. 1282
Grant v. Rock 122 AD3d 1225 N.Y. App. Div. 2014-11-26 at 1226 p. 1282
Marhone v. Schuck 142 AD3d 1232 N.Y. App. Div. 2016-09-22 p. 1282