Matter of James v Fischer

Matter of James v Fischer 2008 NY Slip Op 09521 [57 AD3d 1064] December 4, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

In the Matter of Steven James, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Steven James, Elmira, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 conspiring to introduce marihuana into the facility and soliciting another person to smuggle marihuana into the facility. At the conclusion of 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 seeking annulment ensued.

We confirm. The determination of guilt is supported by substantial evidence including the misbehavior report and corroborating hearing testimony from the correction officer who authored it, together with the recordings of petitioner's telephone conversations (see Matter of Constantino v Goord, 33 AD3d 1093, 1093-1094 [2006]). Petitioner's procedural claims—alleging that his due process rights were violated because the drug testing documentation was not provided to him or read into the record—are unavailing inasmuch as "where, as here, an inmate is charged with smuggling and conspiracy, the documentation requirements of 7 NYCRR 1010.5 do not apply" (Matter of Mackie v Goord, 49 AD3d 952, 953 [2008]; see Matter of Mastropietro v New York State Dept. of Corrections, 52 AD3d 1125, 1126 [2008], lv denied 11 NY3d 711 [2008]; cf. Matter of Williams v Goord, 28 AD3d 897, 898 [2006]). [*2]

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