Matter of Glover v Fischer

Matter of Glover v Fischer 2014 NY Slip Op 00396 Decided on January 23, 2014 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: January 23, 2014
516281

[*1]In the Matter of DARRYL GLOVER, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: November 25, 2013
Before: Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ.


Darryl Glover, Dannemora, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Peter H. Schiff of counsel), for respondents.


MEMORANDUM AND JUDGMENT

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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, a prison inmate, was charged in a misbehavior report with gang activity after an outgoing letter was found to contain gang-related codes and phrases. Following a tier III disciplinary hearing, petitioner was found guilty of that charge and that determination was administratively affirmed. This CPLR article 78 proceeding ensued.

We confirm. Initially we note that, while the petition raised the contention that the determination is not supported by substantial evidence, that issue has been abandoned by petitioner's failure to advance it in his brief (see Matter of Huggins v Noeth, 106 AD3d 1351, 1352 [2013]; Matter of Maddox v Fischer, 105 AD3d 1230, 1230 n [2013]). We reject the argument that the investigator lacked proper authorization for the mail watch that intercepted petitioner's letter, inasmuch as the testimony established that written authorization by the superintendent had been secured (see Matter of Cochran v Bezio, 70 AD3d 1161, 1162 [2010]; Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]). The remainder of petitioner's arguments are either unpreserved or without merit. [*2]

Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur.

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