Harrison v. M. Bertone

50 A.D.3d 1352, 855 N.Y.S.2d 759

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 2008
• Status: Published

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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

After another inmate was found to be in possession of audio cassettes that were intended for petitioner along with a letter directing petitioner on how to proceed with the sale of the cassettes, a search of petitioner’s prison cell recovered numerous prohibited items, including audio cassettes and handwritten notes with information pertaining to the sale of cassettes. Following a tier III disciplinary hearing, petitioner was found guilty of solicitation and possession of contraband. That determination was administratively affirmed and this CPLR article 78 proceeding ensued.

Petitioner asserts that the portion of the determination which found him guilty of solicitation must be annulled. We disagree, noting that the misbehavior report, together with the hearing testimony from the authoring correction officer, provide substantial evidence to support the determination (see Matter of McCloud v Selsky, 45 AD3d 1127, 1128 [2007]; Matter of Chavis v Goord, 45 AD3d 1063, 1064 [2007]). Petitioner’s remaining contentions, including his claims that the hearing was untimely and the Hearing Officer acted unfairly, have been examined and found to be unpersuasive.

Peters, J.P, Spain, Lahtinen, Kavanagh and Stein, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.