| Matter of Huston v Bezio |
| 2010 NY Slip Op 00611 [69 AD3d 1259] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Carlo Huston, Petitioner, v Norman Bezio, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Stein, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner was charged in a misbehavior report with violating the prison disciplinary rulesprohibiting smuggling, stealing, being out of place, making false statements and bringing acontainer into the mess hall. The charges stemmed from the discovery of several items of foodinside two bags that petitioner and another inmate were attempting to carry out of the mess hall.At a tier III disciplinary hearing, petitioner was found guilty of smuggling, stealing and makingfalse statements and not guilty of the remaining charges. The determination of guilt was upheldon administrative appeal, prompting petitioner to commence this CPLR article 78proceeding.[FN1][*2]
Petitioner's contention that the misbehavior report wasnot sufficiently particular to give him notice of the charges against him is without merit. Thereport contains the date, time and place of the offense, as well as the disciplinary rules thatpetitioner allegedly violated and provides a factual basis, including a list of the unauthorizedfood items allegedly taken from the mess hall, to enable petitioner to prepare a defense (see Matter of Page v Fischer, 64 AD3d1067, 1067 [2009]; Matter of Scottv Fischer, 57 AD3d 1035, 1036 [2008], lv denied 12 NY3d 705 [2009]). To theextent that petitioner claims that the report is defective because it does not specifically list whichfood items were in his possession, as opposed to his alleged coconspirator, such contention isunavailing as an inmate involved in a conspiracy to violate prison rules or as an accessory tosuch violation is punishable to the same degree as a violator (see 7 NYCRR 270.3 [b][2], [3]; cf. Matter of Daniel v Lacy, 279 AD2d 916, 917 [2001]).
Petitioner also contends that he was denied the right to call Correction Officer Dotson as awitness to support his claim that he was authorized to possess the items he retrieved from themess hall. He further argues that he was wrongly denied access to the transcript of thedisciplinary hearing of his alleged coconspirator, which he claimed he needed in order tochallenge the credibility of two of the witnesses who testified against him. Due to the existenceof substantial gaps in the hearing transcript, we are precluded from a meaningful review of theHearing Officer's denials of these requests.[FN2]Accordingly, the matter must be remitted for a rehearing (see generally Matter ofMuhammad v Selsky, 279 AD2d 742, 743 [2001]; Matter of Captain Kidd's v New YorkState Liq. Auth., 248 AD2d 791, 792 [1998]).
Cardona, P.J., Spain, Malone Jr. and McCarthy, JJ., concur. Adjudged that the determinationis annulled, without costs, and matter remitted to the Commissioner of Correctional Services forfurther proceedings not inconsistent with this Court's decision.
Footnote 1: Contrary to petitioner'scontention, the petition raised a question of substantial evidence, making the transfer of theproceeding to this Court proper. However, we note that petitioner has not raised a substantialevidence argument in his brief to this Court.
Footnote 2: We also note that the HearingOfficer did not articulate, as required, that disclosure of the transcript of the hearing ofpetitioner's coconspirator would be unduly hazardous to institutional safety (see Matter of Cahill v Goord, 36AD3d 997, 998 [2007]; Matter of Cowart v Coughlin, 193 AD2d 887, 888 [1993];Matter of Hillard v Coughlin, 187 AD2d 136, 140 [1993], lv denied 82 NY2d651 [1993]).