IN RE: Nelson ALVAREZ (2005)

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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged with violating prison disciplinary rules prohibiting possession of unauthorized property, possession of authorized property in an unauthorized area, smuggling and unauthorized exchange after an envelope containing $45.14 in stamps and reflecting the return address of another inmate was recovered from petitioner during a random pat frisk.   Following a tier III disciplinary hearing, petitioner was found guilty of all charges.   After the determination was affirmed on administrative appeal, petitioner commenced this proceeding.

 We confirm.   The misbehavior report and testimony of the authoring correction officer provide substantial evidence to support the determination of guilt (see Matter of Karlin v. Goord, 13 A.D.3d 697, 698, 785 N.Y.S.2d 595 [2004];  Matter of Knight v. McGinnis, 10 A.D.3d 754, 755, 781 N.Y.S.2d 716 [2004];  Matter of Selby v. Coombe, 249 A.D.2d 635, 636, 670 N.Y.S.2d 814 [1998] ).   Petitioner had no standing to challenge the manner in which the envelope was opened because it was not his mail;  it contained the return address of another person and he initially informed the correction officer that it did not belong to him (see People v. Miller, 228 A.D.2d 979, 980, 645 N.Y.S.2d 119 [1996], lv. denied 88 N.Y.2d 990, 649 N.Y.S.2d 397, 672 N.E.2d 623 [1996] ).

 With respect to petitioner's procedural claim, although the employee assistant failed to interview the correction officer as requested by petitioner, the Hearing Officer called the officer as a witness and petitioner declined the opportunity to examine him.   Accordingly, petitioner failed to demonstrate any prejudice flowing from the assistant's alleged inadequacy (see Matter of Tusa v. Goord, 287 A.D.2d 907, 908, 731 N.Y.S.2d 788 [2001], appeal dismissed 98 N.Y.2d 646, 745 N.Y.S.2d 503, 772 N.E.2d 606 [2002] ).   Petitioner's remaining arguments have been reviewed and found lacking in merit.

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

KANE, J.

MERCURE, J.P., CREW III, MUGGLIN and LAHTINEN, JJ., concur.