IN RE: Stacey KNIGHT (2004)

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner challenges a determination finding him guilty of violating the prison disciplinary rule that prohibits promoting gang-related activity after two letters in petitioner's outgoing mail referenced gang issues and activity.   In the letters, petitioner refers to himself as “a founding father” of a gang, indicates that his “loyalty and allegiance stem from prison where [the gang] was founded” and uses a common gang phrase and nickname.   Contrary to petitioner's contention, these letters, the misbehavior report and testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Schuler v. McCray, 8 A.D.3d 777, 778 N.Y.S.2d 237 [2004] ).   We are also unpersuaded by petitioner's reliance on Matter of Knight v. Goord, 255 A.D.2d 930, 681 N.Y.S.2d 719 [1998] in support of his assertion that the letters were seized in violation of departmental rules and regulations.   Although the actual authorization is not contained in the record, the misbehavior report and testimony from its author establish that petitioner's outgoing letters were opened pursuant to a mail watch authorized by the facility superintendent (see 7 NYCRR 720.3[e];  see e.g. Matter of Tafari v. Selsky, 308 A.D.2d 613, 764 N.Y.S.2d 149 [2003], lv. denied 1 N.Y.3d 503, 775 N.Y.S.2d 780, 807 N.E.2d 893 [2003];  Matter of Green v. McGinnis, 262 A.D.2d 897, 692 N.Y.S.2d 523 [1999], lv. dismissed 94 N.Y.2d 931, 708 N.Y.S.2d 350, 729 N.E.2d 1150 [2000] ).   To the extent that petitioner challenges the facts forming the basis of the mail watch, he failed to specifically raise such issue when questioning the correction officer about the authorization.

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