Harrison v. Carpenter

Feb 24, 1994
Versions:201 A.D.2d 848
608 N.Y.S.2d 538
1994 N.Y. App. Div. LEXIS 1572
Casey, J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a deterr, xtion of respondents which found petitioner guilty of violating certain prison disciplinary rules.

*849Petitioner was found guilty of charges contained in a misbehavior report which accused him of violating inmate rules 113.19 (excess tobacco), 113.22 (possession of authorized articles in an unauthorized area) and 113.23 (possession of contraband). The articles were found in a routine random frisk of petitioner’s cell by a correction officer who filed the misbehavior report. After a disciplinary hearing, petitioner was found guilty of violating rules 113.19 and 113.22, and not guilty of the other charged violation.

In regard to the charge of excess tobacco, petitioner claims that 21 packs of cigarettes were confiscated and destroyed illegally. The 21 packs were over and above the 40 packs that were left in petitioner’s cell. As a result of this confiscation, petitioner claims that he has been deprived of the right to use or to send home the 21 packs; in this CPLR article 78 proceeding he requests reimbursement for or return of the 21 packs of cigarettes confiscated. The relief requested is inappropriate in an article 78 proceeding as such relief must be sought in the Court of Claims (see, Correction Law § 24 [2]). Although petitioner requests reversal of his disciplinary determination, he does not dispute that the cigarettes taken were in excess of the authorized amount or that he possessed them. Petitioner’s determination of guilt is supported by substantial evidence and should not be disturbed.

Cardona, P. J., Mercure, White and Weiss, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.