| Matter of Florentino v Washburn |
| 2008 NY Slip Op 00586 [47 AD3d 1169] |
| January 31, 2008 |
| Appellate Division, Third Department |
| In the Matter of Antonio Florentino, Petitioner, v Kathleen A.Washburn, as Senior Mail Clerk of Southport Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Chemung County) to review a determination of respondent Commissioner ofCorrectional Services which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with drug possession after it was determinedthat he had solicited his mother to bring him drugs during a visit. Following a tier III disciplinaryhearing, from which petitioner was removed for disruptive behavior, petitioner was found guiltyas charged. That determination was affirmed upon administrative appeal, although the penaltyimposed was reduced. This CPLR article 78 proceeding ensued.
Initially, inasmuch as "[i]nmates involved in attempts or conspiracies to violate institutionalrules of conduct . . . will be punishable to the same degree as violators of suchrules" (7 NYCRR 270.3 [b]), we are unpersuaded by petitioner's contention that the drugpossession charge cannot be sustained because no drugs were found on him or his mother at thetime of the visit. Turning to the merits, the misbehavior report, the testimony of the InspectorGeneral Investigator who authored it, and petitioner's letter to his mother, in which it can bereasonably [*2]inferred that petitioner requested his mother tobring him drugs on her next visit, provide substantial evidence to support the determination ofguilt (see Matter of McGoey v Selsky, 260 AD2d 814 [1999]; Matter of Rodriguez vGoord, 251 AD2d 737, 737 [1998]).
To the extent they are preserved, petitioner's remaining contentions, including his claim thathe was improperly removed from the hearing, have been reviewed and determined to be withoutmerit.
Cardona, P.J., Mercure, Peters, Spain and Rose, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.