State of New York Supreme Court, Appellate Division Third Judicial Department
May 19, 2011
IN THE MATTER OF STEVEN J. BOGGS, PETITIONER,
DANIEL MARTUSCELLO, AS ACTING SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY, ET AL., RESPONDENTS.
MEMORANDUM AND JUDGMENT
Calendar Date: April 6, 2011
Before: Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Greene County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
After an investigation that included the interception of a letter addressed to petitioner in which 15 plastic baggies containing a tan powder were concealed, petitioner was charged in a misbehavior report with conspiring to introduce contraband, soliciting others to smuggle contraband and violating correspondence procedures. A tier III disciplinary hearing ensued, after which petitioner was found guilty of all charges. That determination was affirmed on administrative appeal and petitioner then commenced this CPLR article 78 proceeding.
We affirm. The detailed misbehavior report, testimony from the investigator, supporting documentation and petitioner's letter to his co-conspirator provide substantial evidence to support the determination of guilt (see Matter of Kirshtein v Bezio, 79 AD3d 1497, 1498 ; Matter of Cruz v Bezio, 79 AD3d 1509, 1509 ). Petitioner's contention that he did not receive the drug testing documentation is unavailing, as these forms are not necessary to substantiate conspiracy and smuggling charges (see Matter of Kirshtein v Bezio, 79 AD3d at 1498; Matter of Quartieri v New York State Dept. of Correctional Servs., 70 AD3d 1071, 1072 ). Finally, with regard to petitioner's contention that the hearing was not timely completed, we note that the required extensions were requested and granted, and petitioner failed to show that he was prejudiced by the minor delay in the request for one of the extensions, which was otherwise valid (see Matter of Martinez v Fischer, 82 AD3d 1380, 1381 ; Matter of Collins v Bellnier, 79 AD3d 1520, 1521 ). Petitioner's remaining contentions have been examined and found to be unpreserved or without merit.
Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
ENTER: Robert D. Mayberger Clerk of the Court
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