Opinion
2015-10-8
In the Matter of Alvin W. McLEAN, Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Alvin W. McLean, Wallkill, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Alvin W. McLean, Wallkill, appellant pro se.Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: LAHTINEN, J.P., EGAN JR., DEVINE and CLARK, JJ.
CLARK, J.
Appeal (transferred to this Court from the Court of Appeals) from a judgment of the Supreme Court (McCarthy, J.), entered June 25, 2014 in Albany County, which, among other things, partially converted petitioner's application, in a proceeding pursuant to CPLR article 78, into an action for a declaratory judgment and declared prison disciplinary rule 103.20 to be constitutional.
During a search of petitioner's cell, correction officials found paperwork containing website information that petitioner had prepared in connection with a legal defense fund set up by his family. According to petitioner, the purpose of the fund was to raise money to cover his legal defense. As a result of the search, petitioner was found guilty of violating certain prison disciplinary rules, including disciplinary rule 103.20, prohibiting solicitation ( see7 NYCRR 270.2[B][4][ii] ). This adverse disciplinary determination was later upheld by this Court ( Matter of McLean v. Fischer, 118 A.D.3d 1240, 988 N.Y.S.2d 85 [2014], appeal dismissed24 N.Y.3d 942, 994 N.Y.S.2d 42, 18 N.E.3d 742 [2014] ).
Petitioner also filed a grievance challenging the application of disciplinary rule 103.20 to him, as well as the constitutionality of the rule. Upon considering the grievance, the Inmate Grievance Resolution Committee concluded that there was no reason to change the rule and the Superintendent of Shawangunk Correctional Facility agreed. On appeal, the Central Office Review Committee upheld this finding and denied petitioner's grievance. Petitioner, in turn, commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court converted that portion of the application seeking to challenge the constitutionality of disciplinary rule 103.20 into a declaratory judgment action and declared the rule constitutional, and otherwise dismissed the remainder of the petition seeking, among other things, to annul the grievance determination. Petitioner now appeals.
Initially, the Court of Appeals has recognized that “while incarceration results in the withdrawal or limitation of many rights, inmates retain those rights guaranteed by the First Amendment, and may exercise them to the extent it would not be inconsistent with their status as prisoners and with the legitimate restrictions imposed by confinement” ( Matter of Lucas v. Scully, 71 N.Y.2d 399, 404, 526 N.Y.S.2d 927, 521 N.E.2d 1070 [1988]; see Matter of Hunt v. Goord, 252 A.D.2d 982, 983, 677 N.Y.S.2d 649 [1998] ). The standard for assessing the constitutionality of a prison regulation is whether “ ‘it is reasonably related to legitimate penological interests' ” ( Matter of Lucas v. Scully, 71 N.Y.2d at 405, 526 N.Y.S.2d 927, 521 N.E.2d 1070, quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 [1987]; see Matter of Cabassa v. Kuhlmann, 173 A.D.2d 973, 974, 569 N.Y.S.2d 824 [1991], lv. denied78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057 [1991] ).
Here, disciplinary rule 103.20 provides that “[a]n inmate shall not request or solicit goods or services from any business or any person other than an immediate family member without the consent and approval of the facility superintendent or designee” (7 NYCRR 270.2[B][4][ii] ). Per respondent, the purpose of the rule is to restrict unwanted solicitations of the general public, staff and volunteers by members of the inmate population. It is, accordingly, reasonably related to the penological objective of maintaining security and order within the correctional facility ( see Jordan v. Garvin, 2004 WL 302361,*3–4, 2004 U.S. Dist. LEXIS 2244, *8–11 [S.D.N.Y. Feb. 17, 2004, No. 01–CIV–4393 LTS GWG]; see also Matter of Mercado v. Selsky, 47 A.D.3d 1167, 1168, 850 N.Y.S.2d 299 [2008], lv. denied10 N.Y.3d 713, 861 N.Y.S.2d 273, 891 N.E.2d 308 [2008]; Matter of Ode v. Kelly, 159 A.D.2d 1000, 1001, 552 N.Y.S.2d 475 [1990] ). Notably, the rule does not unduly burden an inmate's First Amendment rights inasmuch as it provides that an inmate may engage in solicitation upon obtaining the approval of the superintendent of the facility or a designee ( see Matter of Lewis v. Lape, 90 A.D.3d 1259, 1259, 934 N.Y.S.2d 358 [2011], lv. denied18 N.Y.3d 809, 2012 WL 1033692[2012] ). Therefore, we conclude that petitioner's First Amendment challenge to disciplinary rule 103.20 is without merit.
Likewise, we reject petitioner's assertion that disciplinary rule 103.20 is unconstitutionally vague considering that the rule contains language providing a person of ordinary intelligence with notice that posting information on a website seeking donations to a legal defense fund constitutes conduct proscribed by the rule ( see Matter of Brown v. Selsky, 5 A.D.3d 905, 906, 772 N.Y.S.2d 757 [2004]; Matter of Jones v. Department of Correctional Servs. of State of N.Y., 283 A.D.2d 805, 805, 724 N.Y.S.2d 793 [2001] ). Furthermore, given that petitioner's conduct fell squarely within the prohibition of disciplinary rule 103.20, we find that the denial of his grievance was not irrational, arbitrary or capricious, or affected by an error of law ( see Matter of Wright v. New York State Dept. of Correctional Servs., 76 A.D.3d 725, 726, 906 N.Y.S.2d 398 [2010] ). We have considered petitioner's remaining claims and find them to be unavailing.
ORDERED that the judgment is affirmed, without costs. LAHTINEN, J.P., EGAN JR. and DEVINE, JJ., concur.