Mendez v. Goord

21 A.D.3d 1191, 800 N.Y.S.2d 858

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 22, 2005
• Status: Published

Opinion

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 a prison disciplinary rule.

Petitioner was found guilty following a tier III disciplinary hearing of violating prison disciplinary rules prohibiting unauthorized exchange and unauthorized legal .assistance. On administrative appeal, the determination was modified to the extent of dismissing the charge of unauthorized legal assistance. This CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report and the testimony at the hearing provide substantial evidence to support the determination of guilt (see Matter of Alvarez v Goord, 17 AD3d 945, 945 [2005]; Matter of Sanders v Goord, 275 AD2d 842, 842-843 [2000]). While the correction officer who issued the report did not witness the actual unauthorized exchange, the record reveals that he gained personal knowledge of the incident by investigating and ascertaining the underlying facts after they occurred (see 7 NYCRR 251-3.1 [b]; Matter of Howard v Goord, 9 AD3d 778, 778 [2004], Iv dismissed 3 NY3d 764 [2004]; Matter of Bonacci v Goord, 3 AD3d 639, 639 [2004]).

We have examined petitioner’s remaining contentions, including his procedural claims, and find them to be without merit.

Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.