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In the Matter of Jose Alvarado v. Commissioner of Special Housing Unit et al

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


March 8, 2012

IN THE MATTER OF JOSE ALVARADO, PETITIONER,
v.
COMMISSIONER OF SPECIAL HOUSING UNIT ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: January 23, 2012

Before: Peters, J.P., Lahtinen, Malone Jr., 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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.

During the course of an extensive investigation, correction officials discovered that petitioner was the head of a scheme to bring drugs into the correctional facility through the use of other inmates and their visitors as couriers. Specifically, it was determined that petitioner's sister supplied the drugs and that a female friend received the resulting payments. Petitioner subsequently was charged in a misbehavior report with conspiring to introduce drugs into the correctional facility, soliciting others to smuggle drugs into the facility, violating facility visiting room procedures and violating facility telephone procedures. At the conclusion of a tier III disciplinary hearing, he was found guilty of all charges. The determination was affirmed upon administrative appeal with a modified penalty, and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the considerable testimony adduced at the hearing, including the recorded telephone conversations, as well as the incriminating confidential information reviewed by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Stinson v Prack, 87 AD3d 1218, 1219 [2011]; Matter of Jimenez v Fischer, 56 AD3d 924, 926 [2008]). Although petitioner asserts that he was never found to be in possession of drugs, this was not necessary to establish that he conspired with others to introduce drugs into the facility (see 7 NYCRR 270.2 [B] [14] [xv]; Matter of Monroe v Fischer, 73 AD3d 1304, 1304 [2010]), which was sufficiently proven by the evidence introduced at the hearing. Petitioner's remaining contentions are either unpreserved for our review or have been examined and found to be lacking in merit.

Peters, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120308

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