Matter of Porter v Selsky

Matter of Porter v Selsky 2009 NY Slip Op 08108 [67 AD3d 1151] November 12, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Kerry Porter, Petitioner, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

—[*1] Kerry Porter, Rome, 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prisoner, was served with a misbehavior report charging him with, among other things, violating the prison disciplinary rules that prohibit possession of stamps in excess of $20 in value, possession of an article in an area where its use or possession is prohibited, and smuggling. Following a tier III disciplinary hearing, he was found guilty of the enumerated charges. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report and petitioner's admissions during the hearing provide substantial evidence to support the determination (see Matter of Wilcox v Fischer, 63 AD3d 1494, 1494-1495 [2009]; Matter of Moore v Fischer, 63 AD3d 1401 [2009]). Indeed, petitioner admitted to possessing stamps in his cell, the value of which exceeded $20. He further testified that, because he forgot that the stamps were under his mattress when his belongings were packed for transfer from another facility, they were not on the transfer list and he carried them into his current facility in his pocket. [*2]

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