State of New York Supreme Court, Appellate Division Third Judicial Department
February 4, 2010
IN THE MATTER OF VINCENT GOMEZ, PETITIONER,
BRIAN C. FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, 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.
MEMORANDUM AND JUDGMENT
Calendar Date: November 30, 2009
Before: Cardona, P.J., Peters, Rose, Malone Jr. and McCarthy, JJ.
During a search of petitioner's cell, a correction officer found legal documents belonging to 35 other inmates as well as other papers of a legal nature. As a result, petitioner was charged in a misbehavior report with engaging in an unauthorized exchange of personally owned property, providing legal assistance without authorization, possessing contraband and smuggling. Following a tier III disciplinary hearing, he was found guilty of possessing contraband and smuggling. The determination was upheld on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with petitioner's testimony in which he admitted to possessing legal materials belonging to other inmates as well as to copying legal decisions from the law library and taking them back to his cell, provide substantial evidence supporting the determination of guilt (see Matter of Frejomil v LaClair, 46 AD3d 1061, 1061 ; Matter of Holmes v Brown, 43 AD3d 1234, 1235 , lv denied 9 NY3d 815 ). Contrary to petitioner's contention, the misbehavior report was sufficiently detailed to give petitioner notice of the charges in order to enable him to prepare a defense (see Matter of Arnold v Fischer, 60 AD3d 1177, 1177 ; Matter of Abdul-Khaliq v Goord, 34 AD3d 872, 872 ). Furthermore, the record does not reveal that the Hearing Officer was biased or that the determination at issue flowed from any alleged bias (see Matter of Linares v Fischer, 59 AD3d 761 , lv denied 12 NY3d 709 ).
Cardona, P.J., Peters, Rose, Malone Jr. and McCarthy, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
© 1992-2010 VersusLaw Inc.