Cole v. Goord

Jan 24, 2008
Versions:47 A.D.3d 1147
850 N.Y.S.2d 687

Appeal from a judgment of the Supreme Court (McNamara, J.), entered January 11, 2007 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Commissioner of Correctional Services finding petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, commenced this CPLR article 78 proceeding seeking to annul a tier III disciplinary determination finding him guilty of drug possession and smuggling. Supreme Court dismissed the petition, prompting this appeal.

We affirm. While the form authorizing the strip search was not signed by a sergeant or higher ranking officer as required by Department of Correctional Services Directive No. 4910, the record establishes that the search was, in fact, authorized by a correction sergeant and petitioner has not demonstrated that he has been prejudiced by the technical defect (see Matter of Motzer v Goord, 273 AD2d 559, 559-560 [2000]; Matter of Roman v Selsky, 270 AD2d 519, 520 [2000]). Moreover, contrary to petitioner’s contention, the record reflects that probable cause existed, including information provided by a confidential informant, to conduct a strip search (see Department of Correctional Services Directive No. 4910 [III] [F]).

Finally, petitioner’s remaining claims are not properly before us as he did not raise them in his petition (see Matter of Pigmentel v Selsky, 19 AD3d 816, 817 [2005]; Matter of Reid v Goord, 14 AD3d 950, 951 [2005]).

Peters, J.P., Rose, Lahtinen, Malone and Kavanagh, JJ., concur.

Ordered that the judgment is affirmed, without costs.