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Nelson v. Fischer

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


May 20, 2010

IN THE MATTER OF ORPHEUS NELSON, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

Before: Cardona, P.J., Spain, Lahtinen, Stein and Garry, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with conspiring to smuggle and possess drugs, as well as violating facility visitation procedures. After a tier III disciplinary hearing, he was found guilty as charged. His administrative appeal resulted in a modified penalty and, thereafter, he commenced this CPLR article 78 proceeding.

Initially, inasmuch as the misbehavior report was issued in the wake of an ongoing investigation, it was tendered in a timely manner (see 7 NYCRR 251-3.1 [a]; Matter of Decastro v Prack, 62 AD3d 1224, 1225 [2009]; Matter of Schultz v Goord, 301 AD2d 764, 764-765 [2003]). Next, we find that petitioner received adequate employee assistance, as the assistant was apparently asked only to interview witnesses who were identified in confidential documents and later refused to testify, and to obtain documents that were either confidential or nonexistent (see Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]; Matter of Tusa v Goord, 287 AD2d 907, 908 [2001], appeal dismissed 98 NY2d 646 [2002]). Finally, the misbehavior report and testimony of the investigator who prepared it, as well as confidential testimony and documentary evidence, provide substantial evidence to support the determination of petitioner's guilt (see Matter of Johnson v Goord, 7 AD3d 863, 863-864 [2004]; Matter of Kayshawn v Selsky, 277 AD2d 611, 611 [2000]). Petitioner's remaining contentions, to the extent they are properly before us, have been reviewed and found to be without merit.

Cardona, P.J., Spain, Lahtinen, Stein and Garry, JJ., concur.

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

20100520

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