IN RE: Raymond CUADRADO (1998)

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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating the prison disciplinary rules which prohibit assaulting an inmate and possessing unauthorized organizational materials.   Respondent concedes, and our review of the record confirms, that procedural infirmities pertaining to the charge of assault on an inmate require that we annul that part of the determination.

We reach a different conclusion, however, on the charge of unauthorized possession of organizational materials.   Included in the material confiscated from petitioner's cell was a document labeled “POW MINC” which made references to “recruiting some loyal trusting soldiers that will represent with no hesitation” and purchasing “uzi[s]”, shotguns and other weapons.   Furthermore, a drawing entitled La Familia depicted individuals with firearms standing over a grave.   This evidence together with the misbehavior report provide substantial evidence to support the determination of petitioner's guilt (see, Matter of Rivera v. Coombe, 231 A.D.2d 790, 791, 647 N.Y.S.2d 128).

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of assaulting an inmate;  petition granted to that extent, respondent is directed to expunge all references thereto from petitioner's institutional record and matter remitted to respondent for redetermination of the penalty imposed on the remaining violation;  and, as so modified, confirmed.

MEMORANDUM DECISION.