                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522449
________________________________

In the Matter of CONRAD
   MARHONE,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
W. CONROY, as Correction
   Officer at Attica
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:   October 25, 2016

Before:   Garry, J.P., Egan Jr., Lynch, Rose and Devine, JJ.

                             __________


     Conrad Marhone, Pine City, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Marcus J.
Mastracco of counsel), 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 Corrections and
Community Supervision finding petitioner guilty of violating a
prison disciplinary rule.

      Petitioner was charged in a misbehavior report with
violating facility correspondence rules, smuggling and
solicitation. The charges stemmed from petitioner mailing an
envelope to respondent, a correction officer who worked as the
facility property officer, containing two letters addressed to
the facility steward and the inmate records coordinator.
Following a tier III disciplinary hearing, petitioner was found
guilty of violating facility correspondence rules and the other
                              -2-                522449

charges were dismissed. That determination was affirmed on
administrative review, and this CPLR article 78 proceeding
ensued.

      We confirm. The misbehavior report, documentary evidence
and the hearing testimony provide substantial evidence supporting
the determination of guilt (see Matter of Tafari v Annucci, 137
AD3d 1356, 1357 [2016]; Matter of Rodriguez v Fischer, 120 AD3d
855, 855 [2014]). Regarding inmate correspondence, "[a]n inmate
shall not include any written material in outgoing mail not
specifically intended for the addressee identified on the
exterior of the envelope" (7 NYCRR 720.3 [p]). Respondent
testified that he received an envelope addressed to him through
the facility mail system, containing the letters addressed to the
other parties. Petitioner's contention, that he should not have
been found guilty because respondent admittedly did not save the
exterior envelope, is unavailing. Petitioner admitted to writing
the letters and argued at the hearing that, rather than sending
them to respondent, he sent them in an envelope addressed to the
facility superintendent. Therefore, even accepting petitioner's
version of the events, his conduct still violated the
correspondence rules. In light of this, we find no error in the
Hearing Officer's denial of certain witnesses whose testimony
would have been irrelevant (see Matter of Hayes v Fischer, 123
AD3d 1266, 1267 [2014]; Matter of Grant v Rock, 122 AD3d 1225,
1226 [2014]).

      Finally, for the reasons stated in Matter of Marhone v
Schuck (142 AD3d 1232 [2016]), we reject petitioner's contention
that Supreme Court abused its discretion in denying his motion to
consolidate this proceeding with a separate proceeding
challenging an unrelated disciplinary determination.
Petitioner's remaining claims have been considered and found to
be without merit.

     Garry, J.P., Egan Jr., Lynch, Rose and Devine, JJ., concur.
                              -3-                  522449

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
