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Smart v. New York State Dep't of Correctional Services

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


July 29, 2010

IN THE MATTER OF DESHAWN SMART, PETITIONER,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 9, 2010

Before: Cardona, P.J., Spain, Rose, Malone Jr. and McCarthy, 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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

During the course of an investigation, correction officials obtained information that petitioner conspired with his wife to bring drugs into the correctional facility during visitation. As a result, he was charged in a misbehavior report with smuggling, conspiring to possess drugs, violating facility visitation procedures and violating facility correspondence procedures. Petitioner was found guilty of these charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the investigator who prepared it, as well as the documentary evidence, provide substantial evidence supporting the determination of guilt (see Matter of Nelson v Fischer, 73 AD3d 1365, 1366 [2010]; Matter of Cruz v Goord, 41 AD3d 1122, 1122-1123 [2007]; Matter of Horton v Allard, 25 AD3d 1048, 1049 [2006]). The misbehavior report was prepared as the result of an ongoing investigation and, contrary to petitioner's claim, was sufficiently specific to enable him to prepare an adequate defense (see Matter of Powell v Goord, 34 AD3d 876, 877 [2006]; Matter of Jackson v Smith, 13 AD3d 685, 685-686 [2004], lv denied 4 NY3d 707 [2005]). Furthermore, our review of the record does not reveal that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Caldwell v Fischer, 67 AD3d 1176, 1177 [2009]; Matter of Martino v Goord, 38 AD3d 958, 959 [2007]). Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.

Cardona, P.J., Spain, Rose, Malone Jr. and McCarthy, JJ., concur.

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

20100729

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