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In the Matter of David Carrero v. Brian Fischer

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


May 16, 2013

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

MEMORANDUM AND JUDGMENT

Calendar Date: April 3, 2013

Before: Peters, P.J., Stein, Spain 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.

Following a confidential investigation, petitioner was charged in a misbehavior report with smuggling and conspiring to introduce drugs into the correctional facility. The charges stemmed from correspondence that petitioner sent to his wife asking her to bring drugs to the correctional facility. Following a tier III disciplinary hearing, he was found guilty of both charges. The determination of guilt was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, hearing testimony and confidential information provide substantial evidence to support the determination of guilt (see Matter of Garner v Selsky, 47 AD3d 1167, 1168 [2008]). The testimony of both petitioner and his wife that the code words used in the letters did not refer to narcotics presented a credibility issue for the Hearing Officer to resolve (see Matter of Reid v Goord, 34 AD3d 954, 955 [2006]). Petitioner's procedural challenges, including that he was denied documentary evidence and the Hearing Officer was biased, have been reviewed and found to be unpreserved or without merit.

Peters, P.J., Stein, Spain and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130516

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