Opinion
519202.
04-23-2015
In the Matter of Dupree HARRIS, Petitioner, v. Joseph SMITH, as Superintendent of Shawangunk Correctional Facility, Respondent.
Dupree Harris, Wallkill, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Dupree Harris, Wallkill, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, EGAN JR. and LYNCH, JJ.
Opinion Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
During the course of an investigation in which confidential information was received, a correction official determined that petitioner facilitated a third-party telephone call for another inmate. As a result, he was charged in a misbehavior report with making a third-party telephone call and using another inmate's personal identification number (hereinafter PIN). Following a tier II disciplinary hearing, petitioner was found guilty of making a third-party telephone call, but not guilty of using an inmate's PIN. The determination was later affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Substantial evidence, consisting of the detailed misbehavior report, hearing testimony-including petitioner's testimony in which he admitted to making the telephone call at issue and allowing another inmate to participate in the call-and the audio recording of the telephone call, supports the determination of guilt (see Matter of Haigler v. Fischer, 119 A.D.3d 1261, 1262, 989 N.Y.S.2d 698 [2014], lv. denied 24 N.Y.3d 908, 2014 WL 5437354 [2014] ; Matter of Carrasco v. Fischer, 96 A.D.3d 1315, 1316, 947 N.Y.S.2d 219 [2012] ). Moreover, contrary to petitioner's claim, the exclusion of the transcript of the recorded telephone conversation does not preclude meaningful review of the matter inasmuch as the recording is part of the record and he was afforded the opportunity to listen to the recording during the hearing and respond to its contents (see Matter of Davila v. Prack, 113 A.D.3d 978, 978, 979 N.Y.S.2d 195 [2014], lv. denied 23 N.Y.3d 904, 2014 WL 2579975 [2014] ).
Finally, the record does not support petitioner's contention that the Hearing Officer relied upon the confidential information in rendering the determination (see Matter of Credell v. Fischer, 120 A.D.3d 857, 858, 990 N.Y.S.2d 369 [2014] ; Matter of Aguirre v. Fischer, 111 A.D.3d 1219, 1220, 975 N.Y.S.2d 814 [2013] ). Petitioner's remaining claims have been examined and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.