IN RE: Israel MERCADO (2008)

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.

A search of petitioner's prison cell recovered materials containing references to a particular gang.   As a result, petitioner was charged in a misbehavior report with possessing unauthorized organization material.   A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged.   That determination was affirmed upon administrative review, prompting petitioner to commence this CPLR article 78 proceeding.

 We confirm.   The misbehavior report, confiscated materials and hearing testimony from a correction officer with specialized training in unauthorized organizations comprise substantial evidence to support the determination of guilt (see Matter of Jenkins v. Goord, 30 A.D.3d 719, 720, 815 N.Y.S.2d 491 [2006] ).   Contrary to petitioner's assertion, the restriction of his possession of materials related to the gang does not violate his 1st Amendment rights “inasmuch as it is reasonably related to the legitimate penological interest of maintaining prison security” (Matter of Buford v. Goord, 258 A.D.2d 761, 762, 686 N.Y.S.2d 121 [1999];  see Matter of Lucas v. Scully, 71 N.Y.2d 399, 405, 526 N.Y.S.2d 927, 521 N.E.2d 1070 [1988];  Matter of Tenace v. Goord, 278 A.D.2d 549, 550, 717 N.Y.S.2d 408 [2000], lv. denied 96 N.Y.2d 707, 725 N.Y.S.2d 637, 749 N.E.2d 206 [2001] ).   Petitioner's remaining contentions, including his claim that facility personnel should have screened his mail and intercepted the materials before they were delivered to him, have been considered and are without merit.

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