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Johnson v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


November 12, 2009

IN THE MATTER OF CLARENCE JOHNSON, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ.

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 the Superintendent of Eastern Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.

At the conclusion of a tier II disciplinary hearing, petitioner was found guilty of possessing property in an unauthorized area and smuggling. Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.

We confirm. We find that the misbehavior report, coupled with petitioner's admissions during the hearing, provide substantial evidence to support the determination (see Matter of Rivera v Leclaire, 54 AD3d 465 [2008], appeal dismissed 12 NY3d 735 [2009]; Matter of Raqiyb v Goord, 24 AD3d 1013 [2005]). Petitioner admitted during the hearing that he carried a crochet hook and yarn into the yard in his net bag in violation of the rule prohibiting arts and crafts items in that area. The record also establishes that petitioner had other items wrapped in a towel that were not among those listed as being permitted in the yard. We are unpersuaded by petitioner's contention that an item must be found to be contraband in order to support a charge of smuggling.

Petitioner's remaining contentions have been examined and found to be without merit.

Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ., concur.

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

20091112

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