Matter of Davis v Fischer

Matter of Davis v Fischer 2008 NY Slip Op 04583 [51 AD3d 1301] May 22, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 16, 2008

In the Matter of Robert Davis, Petitioner, v Brian S. Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Robert Davis, Attica, petitioner pro se.

Andrew M. Cuomo, 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.

Petitioner, a prison inmate, was charged in a misbehavior report with violating the prison disciplinary rules that prohibit conspiring to introduce drugs into the facility and soliciting others to smuggle drugs into the facility. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was administratively affirmed with a modified penalty and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, hearing testimony from the correction officer who authored the report, taped telephone conversations and an incoming letter to petitioner comprise substantial evidence supporting the determination of guilt (see Matter of Werner v Philips, 20 AD3d 711, 711-712 [2005]). Given that the foregoing evidence, without more, was legally sufficient to uphold the determination, the Hearing Officer's improper reliance upon an outgoing letter from petitioner which was not authorized by a mail watch was harmless (see Matter of Carter v Goord, 266 AD2d 623, 624 [1999]; Matter of Fletcher v Selsky, 199 AD2d 865, 866[*2][1993], lv denied 83 NY2d 753 [1994]). To the extent not specifically addressed herein, petitioner's remaining contentions have been examined and are unavailing.

Cardona, P.J., Mercure, Carpinello, Kane and Malone Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.