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In the Matter of Francis v. Brian Fischer

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


December 13, 2012

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

MEMORANDUM AND JUDGMENT

Calendar Date: October 29, 2012

Before: Mercure, J.P., Lahtinen, Spain, Kavanagh and Garry, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review four determinations of respondent which found petitioner guilty of violating certain disciplinary rules.

Petitioner, an inmate, was found guilty of violating prison disciplinary rules prohibiting extortion and solicitation based upon letters he wrote to his niece. Those letters, together with another letter that petitioner's niece wrote to him, the misbehavior report and testimony of the senior investigator from the Inspector General's office who authored the report, constitute substantial evidence supporting the determination (see Matter of Blake v Goord, 35 AD3d 1016, 1017 [2006]). The Hearing Officer made reasonable and substantial efforts to contact petitioner's witness (see Matter of Wright v Bezio, 64 AD3d 1109, 1110 [2009]) and, in any event, her testimony would not negate the content of the letters authored by petitioner, which speak for themselves. Regarding petitioner's remaining contentions, we find that the transcript, insofar as it contains the minutes of the hearing at issue, is sufficiently complete as to allow meaningful review (see Matter of Harris v Selsky, 15 AD3d 708, 708 [2005]), and petitioner was not denied access to necessary documents (see Matter of Jimenez v Fischer, 56 AD3d 924, 925 [2008]). Finally, the confidential information that petitioner claims was incorrectly included in the record was not received or considered by this Court.

Mercure, J.P., Lahtinen, Spain, Kavanagh and Garry, JJ., concur.

ADJUDGED that the determinations are confirmed, without costs, and the petition dismissed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121213

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