Matter of Bernabe Encarnacion v Glenn S. Goord

Matter of Encarnacion v Goord 2005 NY Slip Op 09602 [24 AD3d 992] December 15, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

In the Matter of Bernabe Encarnacion, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.

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Appeal from a judgment of the Supreme Court (Tait, J.), entered March 9, 2005 in Chemung County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying his grievance.

During a routine inspection of petitioner's incoming mail, a $600 money order made payable to petitioner was discovered. Although the return address on the envelope was that of a Mario Sandoval, this name was not indicated in petitioner's file as a family member or contact person. Following an investigation by the Inspector General's office, it was determined that Sandoval was an alias used by another inmate's brother and that the inmate had asked his brother to send the money to petitioner to pay a gambling debt. As a result, the money order was confiscated. Petitioner's subsequent grievance seeking the return of the money order was denied and his administrative appeal proved unsuccessful. Petitioner thereafter commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.

We affirm. Directive 4422 (III) (G) (2) requires that money orders come from a "clearly identifiable source." Although petitioner now claims that Sandoval is a friend, during the investigation into the receipt of the money order, petitioner denied knowing who Sandoval was or why the money was sent. In view of the foregoing, the denial of petitioner's grievance was neither arbitrary nor capricious (see Matter of Abdul-Matiyn v Commissioner of State of N.Y. [*2]Dept. of Correctional Servs., 252 AD2d 754, 755 [1998]), and Supreme Court properly dismissed the petition. Petitioner's remaining contentions have been reviewed and, to the extent they are preserved, they are without merit.

Cardona, P.J., Mercure, Crew III, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.