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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Richard FELICIANO, Petitioner, v. Donald SELSKY, as Director of Special Housing/Inmate Disciplinary Program, Respondent.

Decided: July 22, 1999

Before:  MERCURE, J.P., CREW III, YESAWICH JR., SPAIN and CARPINELLO, JJ. Richard Feliciano, Ogdensburg, petitioner in person. Eliot Spitzer, Attorney-General (Laura Etlinger of counsel), Albany, for respondent.

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.

Following a tier III disciplinary hearing, petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits inmates from possessing unauthorized organizational insignia or materials.   According to the misbehavior report, a search of petitioner's cell produced a drawing which depicted gang-related symbols and slogans.   Petitioner admitted possessing the drawing but stated that he borrowed it from another inmate and had no idea of its significance.   Petitioner's guilt was affirmed upon his administrative appeal and he thereafter commenced this CPLR article 78 proceeding to challenge the determination.   We confirm.

Initially, we find that the misbehavior report, combined with the evidence relied upon by the Hearing Officer, i.e., petitioner's own admissions and the testimony of the reporting correction officer and another correction officer who had received special training with respect to prison gangs, provide substantial evidence of his guilt (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477).   Although petitioner claimed to be unaware that possession of this type of drawing was prohibited, this “does not absolve him from guilt” (Matter of Jenkins v. Senkowski, 221 A.D.2d 779, 634 N.Y.S.2d 224).   The remaining arguments raised in petitioner's brief, including his challenge to the sufficiency of the misbehavior report and his claim of Hearing Officer bias, have been waived due to his failure to object at the hearing.   Were these contentions properly before us, we would find them to be unsupported by the record.

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


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