Matter of Smythe v Fischer

Matter of Smythe v Fischer 2012 NY Slip Op 08588 Decided on December 13, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 13, 2012
513833

[*1]In the Matter of FRANCIS SMYTHE, Petitioner,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: October 29, 2012
Before: Mercure, J.P., Lahtinen, Spain, Kavanagh and Garry, JJ.


Law Office of Thomas Terrizzi, Buffalo (Thomas
Terrizzi of counsel), for petitioner.
Eric T. Schneiderman, Attorney General, Albany
(Martin A. Hotvet of counsel), for respondent.


MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review four determinations of respondent which found petitioner guilty of violating certain disciplinary rules.

Petitioner, an inmate, was found guilty of violating prison disciplinary rules prohibiting extortion and solicitation based upon letters he wrote to his niece. Those letters, together with another letter that petitioner's niece wrote to him, the misbehavior report and testimony of the senior investigator from the Inspector General's office who authored the report, constitute substantial evidence supporting the determination (see Matter of Blake v Goord, 35 AD3d 1016, 1017 [2006]). The Hearing Officer made reasonable and substantial efforts to contact petitioner's witness (see Matter of Wright v Bezio, 64 AD3d 1109, 1110 [2009]) and, in any event, her testimony would not negate the content of the letters authored by petitioner, which speak for themselves. Regarding petitioner's remaining contentions, we find that the transcript, insofar as it contains the minutes of the hearing at issue, is sufficiently complete as to allow meaningful review (see Matter of Harris v Selsky, 15 AD3d 708, 708 [2005]), and petitioner was not denied access to necessary documents (see Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]). Finally, the confidential information that petitioner claims was incorrectly included in the record was not received or considered by this Court. [*2]

Mercure, J.P., Lahtinen, Spain, Kavanagh and Garry, JJ., concur.

ADJUDGED that the determinations are confirmed, without costs, and the petition dismissed.