Matter of Cane v Fischer

Matter of Cane v Fischer 2014 NY Slip Op 01789 Decided on March 20, 2014 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: March 20, 2014
516502

[*1]In the Matter of DERRICK CANE, Petitioner,

v

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

Calendar Date: January 21, 2014
Before: Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ.


Derrick Cane, Malone, petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany
(Owen Demuth 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 a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

As the result of an investigation, correction officials discovered that petitioner had conspired with a female visitor to bring drugs into the correctional facility. When the female visitor arrived at the facility, she was arrested and voluntarily relinquished a quantity of marihuana and suboxone to correction officials. Petitioner was then charged in a misbehavior report with conspiring to smuggle contraband, soliciting another to smuggle contraband and violating visiting room procedures. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal [FN1]. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, related documentation and testimony considered [*2]by the Hearing Officer at the hearing and in camera provide substantial evidence supporting the determination of guilt (see Matter of Thompson v Martuscello, 105 AD3d 1218, 1219 [2013]; Matter of Scivolette v Prack, 102 AD3d 1024 [2013]). The misbehavior report was prepared as the result of an ongoing investigation and, contrary to petitioner's claim, was sufficiently detailed to enable him to prepare a defense (see Matter of Scivolette v Prack, 102 AD3d at 1024; Matter of Pisano v Fischer, 87 AD3d 1247, 1248 [2011]). Petitioner was not prejudiced by the fact that the report was not endorsed by one of the correction officers involved in the investigation given that this officer testified at the hearing (see Matter of Sorrentino v Fischer, 101 AD3d 1210, 1211 [2012], lv denied 20 NY3d 862 [2013]; Matter of Bookman v Fischer, 99 AD3d 1127, 1128-1129 [2012]). We have considered petitioner's remaining contentions and find them to be without merit.

Peters, P.J., Lahtinen, McCarthy and Egan Jr., JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed. Footnotes

Footnote 1: Certain penalties imposed in connection with the disciplinary determination were reduced upon further discretionary review.