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In the Matter of Christopher v. Brian Fischer

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


April 19, 2012

IN THE MATTER OF CHRISTOPHER RANDALL, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

The opinion of the court was delivered by: Mercure, J.P.,

MEMORANDUM AND JUDGMENT

Calendar Date: February 21, 2012

Before: Mercure, J.P., Rose, Lahtinen, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Substantial evidence in the form of the misbehavior report, the transcript of petitioner's telephone conversations with his girlfriend, testimony from an investigator that the telephone conversations between petitioner and his girlfriend contained coded words for contraband and the signed statement by petitioner's girlfriend that he had assisted her efforts to smuggle the drugs and scalpels into the facility supports the determination finding petitioner guilty of smuggling, conspiring to possess drugs and weapons and violating facility visitation (see Matter of Cognata v Fischer, 85 AD3d 1456, 1457 [2011]; Matter of Quartieri v New York State Dept. of Correctional Servs., 70 AD3d 1071, 1072 [2010]). We are unpersuaded by petitioner's contention that his assistance was inadequate because he was not provided with certain documentation. A review of the record reveals that certain of those documents were confidential, nonexistent or irrelevant to the smuggling and conspiracy charges (see Matter of Boggs v Martuscello, 84 AD3d 1625, 1626 [2011]). The remaining document, specifically the incomplete unusual incident report and the written statement of petitioner's girlfriend, were read into the record at the hearing and petitioner has demonstrated no prejudice from any alleged deficiencies (see Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]).

Petitioner's remaining contentions, including that he was denied the right to call witnesses and that the Hearing Officer was biased, have been reviewed and found to be without merit.

Rose, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20120419

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