Matter of Rodriguez v Leclaire

Matter of Rodriguez v Leclaire 2007 NY Slip Op 09176 [45 AD3d 1159] November 21, 2007 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Friday, April 25, 2008

In the Matter of Edguardo Rodriguez, Petitioner, v Lucien J. Leclaire, Jr., as Commissioner of Correctional Services, Respondent.

—[*1] Edguardo Rodriguez, Auburn, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following a tier III disciplinary hearing, petitioner was found guilty of unauthorized exchange, smuggling and a facility correspondence violation. The determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. The determination of guilt is supported by substantial evidence in the form of the misbehavior report and hearing testimony, including confidential information, from the authoring correction officer (see Matter of Davis v Goord, 34 AD3d 1027, 1027 [2006]). Petitioner's contentions that the mail in question was improperly opened and he was wrongly denied access to the confidential information are without merit (see Matter of Knight v Selsky, 20 AD3d 852, 853 [2005]; Matter of Garcia v Selsky, 15 AD3d 813, 814 [2005]). To the extent [*2]that petitioner argues that he received inadequate assistance, his claim is both unpreserved and without merit.

Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.