Matter of Spirles v Laramay

Matter of Spirles v Laramay 2016 NY Slip Op 01726 Decided on March 10, 2016 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: March 10, 2016
521365

[*1]In the Matter of MICHAEL SPIRLES, Petitioner,

v

LIEUTENANT J. LARAMAY, as Acting Captain 102, Respondent.

Calendar Date: January 19, 2016
Before: Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

Michael Spirles, Romulus, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

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 the Superintendent of Five Points Correctional Facility finding petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with possession of contraband after a search of his cell uncovered rosary beads with a metal cross wrapped in clothing and four small pieces of magnet stuck to the wall anchor bolts above petitioner's bunk. Following a tier II disciplinary hearing, petitioner was found guilty as charged and that determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence in the record, including the misbehavior report, petitioner's property intake sheet and testimony at the hearing, supports the determination that the items discovered in petitioner's cell were contraband (see Matter of Machicote v Bezio, 87 AD3d 763, 763 [2011]). Further, with respect to the rosary beads, the record establishes that the beads failed to comply with the Department of Corrections and Community Supervision directive specifying the types of rosary beads permitted within the facility (see Dept of Corr & Community Supervision Directive No. 4202 [XIV] [B]). Petitioner's exculpatory explanation for the items being in his cell presented a credibility issue for the Hearing Officer to resolve (see Matter of Mercer v James, 98 AD3d 1174, 1175 [2012]; Matter of Machicote v Bezio, 87 AD3d at 764). Petitioner's remaining contentions, including that the Hearing Officer was biased, were not raised at the hearing or on administrative appeal and, therefore, are unpreserved for our review (see [*2]Matter of Peoples v Selsky, 33 AD3d 1179, 1180 [2006]).

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

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