Matter of Harry Mendez v Glenn S. Goord

Matter of Mendez v Goord 2005 NY Slip Op 06826 [21 AD3d 1191] September 22, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 16, 2005

In the Matter of Harry Mendez, Petitioner, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

—[*1]

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], lv 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. [*2]

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