Matter of Covington v Harford

Matter of Covington v Harford 2013 NY Slip Op 02801 Decided on April 25, 2013 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 25, 2013
514887

[*1]In the Matter of JOHN COVINGTON, Appellant,

v

ADP HARFORD, as Assistant Deputy Superintendent of Programs at Clinton Correctional Facility, Respondent.

Calendar Date: February 25, 2013
Before: Mercure, J.P., Stein, McCarthy and Egan Jr., JJ.


John Covington, Attica, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Kathleen M. Treasure of counsel), for respondent.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Lawliss, J.), entered June 13, 2012 in Clinton County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Commissioner of Corrections and Community Supervision finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination finding him guilty of violating four prison disciplinary rules. Supreme Court partially granted the petition by annulling the determination insofar as it found petitioner guilty of violating three of the rules and remitted for further proceedings. Petitioner now appeals and argues that the extant portion of the determination, which found him guilty of violating the prison disciplinary rule prohibiting the possession of alcohol, also should have been annulled.

We disagree and affirm. Petitioner raises contentions regarding whether the search of his cell that disclosed the alcohol was justified and, in turn, whether he was improperly denied the right to present evidence on that issue. Even assuming that these arguments are properly before us, "the basis for the search in the first instance was irrelevant to the issue of whether petitioner possessed the [alcohol]" and did not warrant exploration at the disciplinary hearing (Matter of Sweeter v Coughlin, 221 AD2d 741, 741 [1995]; see Matter of Mullady v Bezio, 87 [*2]AD3d 765, 766 [2011]).

Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.