MatterofWelchvFischer

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2014
• Docket: 517995
• Status: Published

Opinion

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: October 2, 2014 517995 ________________________________

In the Matter of HOWARD WELCH, Petitioner, v

BRIAN FISCHER, as Commissioner MEMORANDUM AND JUDGMENT of Corrections and Community Supervision, Respondent. ________________________________

Calendar Date: August 4, 2014

Before: Peters, P.J., Garry, Egan Jr., Lynch and Clark, JJ.

__________

Howard Welch, Johnstown, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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.

An investigation into a drug operation revealed that petitioner had conspired to bring marihuana and synthetic marihuana into the correctional facility. As a consequence, petitioner was charged in a misbehavior report with smuggling, possession of contraband and possession of drugs. Following a tier III disciplinary hearing, he was found guilty as charged and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued. -2- 517995

The misbehavior report, hearing testimony and confidential information, reviewed in camera, provide substantial evidence to support the determination of guilt with regard to the smuggling and possession of contraband and drug charges (see Matter of Carrero v Fischer, 106 AD3d 1299, 1299 [2013]; Matter of Flanders v Fischer, 105 AD3d 1238, 1239 [2013]). Contrary to petitioner's contention, the fact that he was never found to be in possession of marihuana or synthetic marihuana does not negate his guilt, as a violation of the rules occurred when petitioner conspired to bring these items into the facility (see 7 NYCRR 270.2 [B] [14] [xiii], [xv]; 270.3 [b]; Matter of Maldonado v New York State Dept. of Corr. Servs., 97 AD3d 873, 874 [2012]; Matter of Sanders v LaClair, 67 AD3d 1226, 1227 [2009]). Petitioner's remaining contentions have been considered and found to be without merit.

Peters, P.J., Garry, Egan Jr., Lynch and Clark, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court