Brown v. Goord

—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 respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rules which prohibit inmates from engaging in sexual acts, possessing a weapon and being out of place. Petitioner commenced this CPLR article 78 proceeding challenging the determination of his guilt. Respondents moved to dismiss the petition on the ground that petitioner failed to obtain personal jurisdiction over them. Supreme Court denied the motion and, following respondents’ answer, the matter was transferred to this Court. Initially, we find no error in Supreme Court denying respondents’ motion to dismiss the petition in view of the affidavit of service contained in the record indicating that petitioner served respondents in compliance with the directive set forth in the order to show cause (see, Matter of Erdheim v 882 Senkowski, 239 AD2d 686, lv denied 91 NY2d 801). Turning to the merits, we conclude that petitioner’s admission of guilt to two of the charges, together with the misbehavior reports which included a description of evidence found in petitioner’s cell linking him to the weapon, provide substantial evidence to support the determination of petitioner’s guilt (see, Matter of Foster v Coughlin, 76 NY2d 964). We note that petitioner’s defense that the sexual conduct was consensual is unavailing since prison disciplinary rule 101.10 clearly proscribes consensual as well as forcible sex (7 NYCRR 270.2 [B] [2] [i]). Petitioner’s remaining contentions, to the extent that they are preserved for our review, have been reviewed and found to be without merit. Mikoll, J. P., Mercure, White, Spain and Graffeo, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.