Opinion
2011-11-23
In the Matter of Santiago GOMEZ, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Santiago Gomez, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Santiago Gomez, Elmira, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: SPAIN, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.
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.
Petitioner, a prison inmate, was served with a misbehavior report charging him with threats, violent conduct, fighting and gang activity after confidential information was received that he was organizing a gang fight in the yard. Following a tier III disciplinary hearing, petitioner was found guilty of all charges except fighting. That determination was affirmed on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer who conducted the investigation and confidential information provide substantial evidence to support the determination ( see Matter of Williams v. Fischer, 84 A.D.3d 1661, 1662, 923 N.Y.S.2d 913 [2011], lv. denied 17 N.Y.3d 711, 2011 WL 4389164 [2011]; Matter of Phipps v. Fischer, 82 A.D.3d 1396, 1397, 918 N.Y.S.2d 385 [2011] ). Petitioner's claim that he could not be found guilty because the fight never occurred is unavailing, inasmuch as a conspiracy to violate a rule may be punished to the same degree as an actual violation ( see 7 NYCRR 270.3[b][2]; Matter of Smiton v. New York State Dept. of Correctional Servs., 70 A.D.3d 1148, 1149, 894 N.Y.S.2d 567 [2010]; Matter of Huston v. Bezio, 69 A.D.3d 1259, 1260, 895 N.Y.S.2d 548 [2010] ).
Turning to petitioner's procedural contentions, we do not find that the misbehavior report was deficient due to its omission of specific dates and times and the identities of petitioner's co-conspirators inasmuch as the report was the result of an ongoing investigation and was based upon confidential information ( see Matter of Boyd v. Fischer, 74 A.D.3d 1679, 1679–1680, 904 N.Y.S.2d 790 [2010]; Matter of Taylor v. Fischer, 74 A.D.3d 1677, 1677, 906 N.Y.S.2d 112 [2010] ). Petitioner's claim that he was denied documentary evidence in the form of a certain sign-in sheet for the day in question is unavailing inasmuch as the record shows that the document no longer existed at the time of the hearing ( see Matter of Dennis v. Bezio, 82 A.D.3d 1398, 1399, 918 N.Y.S.2d 666 [2011]; Matter of Hayes v. Fischer, 78 A.D.3d 1396, 1397, 911 N.Y.S.2d 251 [2010] ). Finally, we find that the determination of guilt was premised on the evidence presented, rather than any bias on the part of the Hearing Officer ( see Matter of Montgomery v. Fischer, 84 A.D.3d 1666, 1667, 923 N.Y.S.2d 918 [2011]; Matter of Weems v. Fischer, 82 A.D.3d 1454, 1456, 919 N.Y.S.2d 548 [2011] ).
We have examined petitioner's remaining contentions and have found them to be either unpreserved for our review or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.