State of New York Supreme Court, Appellate Division Third Judicial Department
March 4, 2010
IN THE MATTER OF CHARLES EDWARDS, PETITIONER,
LUCIEN LECLAIRE, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.
MEMORANDUM AND JUDGMENT
Calendar Date: January 25, 2010
Before: Peters, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of the Superintendent of Franklin Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, returned to his cell from his program assignment as a law library clerk and began conversing with a fellow inmate, after which petitioner removed papers from his folder and had the inmate sign them. A correction officer determined the papers to be legal documents and, thereafter, petitioner was served with a misbehavior report charging him with providing unauthorized legal assistance and smuggling. Petitioner was found guilty of both charges following a tier II disciplinary hearing and, after his administrative appeal was unsuccessful, he commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report and the testimony of both petitioner and the correction officer who witnessed the events and authored the report provide substantial evidence to support the determination of guilt (see Matter of Brown v Fischer, 67 AD3d 1221 ; Matter of Rosa v Brown, 47 AD3d 1142, 1143 ). To the extent that petitioner controverted the correction officer's version of the events, that presented a credibility issue to be resolved by the Hearing Officer (see Matter of Brown v Taylor, 62 AD3d 1230, 1232 ; Matter of Rosa v Brown, 47 AD3d at 1143). We reject petitioner's claim that his due process rights were violated because he was not made aware of certain evidence and testimony to be presented at the hearing, inasmuch as the misbehavior report was sufficient to put petitioner on notice of the charges against him and enabled him to prepare a defense (see Matter of Fludd v New York State Dept. of Correctional Servs., 62 AD3d 1149, 1152 , lv denied 13 NY3d 705 ; Matter of Rios v Fischer, 59 AD3d 797, 797 ).
We have examined petitioner's remaining contentions and find them to be without merit.
Peters, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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