Opinion
2014-03-20
In the Matter of Derrick CANE, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Derrick Cane, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Derrick Cane, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Owen Demuth 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.
As the result of an investigation, correction officials discovered that petitioner had conspired with a female visitor to bring drugs into the correctional facility. When the female visitor arrived at the facility, she was arrested and voluntarily relinquished a quantity of marihuana and suboxone to correction officials. Petitioner was then charged in a misbehavior report with conspiring to smuggle contraband, soliciting another to smuggle contraband and violating visiting room procedures. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Certain penalties imposed in connection with the disciplinary determination were reduced upon further discretionary review.
We confirm. The misbehavior report, related documentation and testimony considered by the Hearing Officer at the hearing and in camera provide substantial evidence supporting the determination of guilt ( see Matter of Thompson v. Martuscello, 105 A.D.3d 1218, 1219, 963 N.Y.S.2d 456 [2013];Matter of Scivolette v. Prack, 102 A.D.3d 1024, 957 N.Y.S.2d 915 [2013] ). The misbehavior report was prepared as the result of an ongoing investigation and, contrary to petitioner's claim, was sufficiently detailed to enable him to prepare a defense ( see Matter of Scivolette v. Prack, 102 A.D.3d at 1024, 957 N.Y.S.2d 915;Matter of Pisano v. Fischer, 87 A.D.3d 1247, 1248, 930 N.Y.S.2d 304 [2011] ). Petitioner was not prejudiced by the fact that the report was not endorsed by one of the correction officers involved in the investigation given that this officer testified at the hearing ( see Matter of Sorrentino v. Fischer, 101 A.D.3d 1210, 1211, 955 N.Y.S.2d 290 [2012],lv. denied20 N.Y.3d 862, 2013 WL 1197877 [2013];Matter of Bookman v. Fischer, 99 A.D.3d 1127, 1128–1129, 952 N.Y.S.2d 303 [2012] ). We have considered petitioner's remaining contentions and find them to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
PETERS, P.J., LAHTINEN, McCARTHY and EGAN JR., JJ., concur.