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Matter of Smith v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Jun 22, 2000
273 A.D.2d 661 (N.Y. App. Div. 2000)

Opinion

Decided and Entered: June 22, 2000.

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 a prison disciplinary rule.

Erick Smith, Brocton, petitioner in person.

Eliot Spitzer, Attorney-General (Kathleen M. Treasure of counsel), Albany, for respondent.

Before: Mercure, J.P., Peters, Spain, Rose and Lahtinen, JJ.


MEMORANDUM AND JUDGMENT

Petitioner, a prison inmate, was found guilty of possessing unauthorized organizational materials. Contrary to petitioner's contention, the misbehavior report, as well as petitioner's own testimony and the testimony of a correction officer deemed to be an expert in gang-related material, provide substantial evidence of petitioner's guilt (see generally, Matter of Baez v. Goord, 264 A.D.2d 916; Matter of Velez v. Goord, 262 A.D.2d 906). We also reject petitioner's contention that he was found guilty of violating an inmate rule which does not exist. Petitioner contends that he was found guilty of using the Swahili language and that there is no inmate rule forbidding this use. However, petitioner's use of the Swahili language is not forbidden; it was the content of the language which violated prison inmate rules. Petitioner's further contention that he did not use the language in a gang-related way raised a credibility issue properly resolved by the Hearing Officer (see, Matter of Velez v. Goord, supra). Similarly unavailing is petitioner's contention that the search was conducted in retaliation against him. It is noted that the motivation behind the search has no bearing on the issues at the hearing, i.e., whether petitioner possessed unauthorized organizational materials (see, Matter of Johnson v. Scully, 194 A.D.2d 605).

Finally, to the extent that petitioner's remaining contentions have been preserved for our review, we find that they are without merit.

Mercure, J.P., Peters, Spain, Rose and Lahtinen, JJ., concur.

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


Summaries of

Matter of Smith v. Selsky

Appellate Division of the Supreme Court of New York, Third Department
Jun 22, 2000
273 A.D.2d 661 (N.Y. App. Div. 2000)
Case details for

Matter of Smith v. Selsky

Case Details

Full title:In the Matter of ERICK SMITH, Petitioner, v. DONALD SELSKY, as Director of…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jun 22, 2000

Citations

273 A.D.2d 661 (N.Y. App. Div. 2000)
711 N.Y.S.2d 365

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