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Taylor v. Fischer

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


June 24, 2010

IN THE MATTER OF ERNEST TAYLOR, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 12, 2010

Before: Cardona, P.J., Spain, Kavanagh, Stein and Egan Jr., 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.

As the result of an ongoing investigation, petitioner was charged in a misbehavior report with, as relevant here, drug possession and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was upheld on administrative appeal, with a downward modification of the penalty assessed. Petitioner then commenced this CPLR article 78 proceeding and we confirm.

The misbehavior report, along with hearing testimony and the confidential testimony and documents reviewed by the Hearing Officer in camera, provide substantial evidence to support the determination of guilt (see Matter of Willacy v Fischer, 67 AD3d 1099, 1100 [2009]; Matter of Arnold v Fischer, 60 AD3d 1177 [2009]). We also reject petitioner's contention that the misbehavior report was defective because it failed to recite the dates, times and places of the alleged violations. Inasmuch as it resulted from an ongoing investigation and was based upon confidential information, we find that enough details were provided to afford petitioner the opportunity to prepare a defense (see Matter of Willacy v Fischer, 67 AD3d at 1100; Matter of Jackson v Smith, 13 AD3d 685, 685-686 [2004], lv denied 4 NY3d 707 [2005]). As for petitioner's challenge to the sufficiency and accuracy of the hearing transcript, "there is no indication that the transcript of the hearing was deliberately altered or that significant portions are missing such as to preclude meaningful review" (Matter of Costello v Smith, 26 AD3d 566, 567 [2006]; see Matter of McFadden v Venettozzi, 65 AD3d 1401, 1402 [2009]; see also Matter of Sanders v Haggett, 72 AD3d 1372 [2010]; Matter of Sital v Fischer, 72 AD3d 1306 [2010]). Finally, petitioner's remaining procedural objections are not preserved by his failure to raise them during the hearing or on administrative review (see Matter of White v Superintendent of Wyoming Correctional Facility, 69 AD3d 1180 [2010]).

Cardona, P.J., Spain, Kavanagh, Stein and Egan Jr., JJ., concur.

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

20100624

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