Matter of Caldwell v Fischer

Matter of Caldwell v Fischer 2009 NY Slip Op 08123 [67 AD3d 1176] November 12, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

In the Matter of Ricky Caldwell, Petitioner, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Ricky Caldwell, Auburn, 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 drugs into the facility and smuggling after his brother was found with five grams of heroin during a visit and confessed that petitioner had asked him to bring the drugs into the prison. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, supporting documentation and statement by petitioner's brother provide substantial evidence of petitioner's guilt (see Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]; Matter of Marino v New York State Dept. of Correctional Servs., 41 AD3d 1004, 1005 [2007], appeal dismissed and lv denied 9 NY3d 940 [2007]). Contrary to petitioner's contention, the misbehavior report was sufficiently detailed to afford him the opportunity to prepare a defense (see Matter of Dolan v Goord, 41 AD3d 1119, 1119 [2007]; Matter of Toney v Goord, 26 AD3d 613, 614 [2006]). Further, during the course of the hearing, petitioner invoked his 5th Amendment rights and stated that he no longer wished to [*2]call anyone to testify, thus waiving any claim that he was denied the right to call witnesses (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Dixon v Brown, 62 AD3d 1223, 1224 [2009]). Finally, the record does not substantiate petitioner's claim that the Hearing Officer was biased or that the determination flowed from any bias (see Matter of Gimenez v Artus, 63 AD3d 1461, 1462 [2009]; Matter of Chavis v Goord, 58 AD3d 954, 955 [2009]).

Petitioner's remaining contentions, including his assertion that the penalty imposed was excessive, have been examined and found to be lacking in merit.

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