| Matter of Jimenez v Fischer |
| 2008 NY Slip Op 08583 [56 AD3d 924] |
| November 13, 2008 |
| Appellate Division, Third Department |
| In the Matter of Thomas Jimenez, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Spain, 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 respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, an inmate, was charged in a misbehavior report with conspiring to introducecontrolled substances into a correctional facility, smuggling, engaging in three-way telephoneconversations and violating facility packaging procedures. The misbehavior report was based onpetitioner's alleged involvement in a scheme where his mother would send various inmatescontrolled substances hidden in food packages and the inmates would send her money. Followinga tier III hearing, he was found guilty of all charges. The determination was affirmed onadministrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Initially, we find that petitioner failed to establish that he was providedinadequate employee assistance. The record reveals that he was provided with some of thedocuments he requested at or before the hearing—or access to them or they were read intothe record—and those documents that were not provided were determined to beconfidential or [*2]nonexistent (see Matter of Antinuche v Goord, 16AD3d 743, 744 [2005]). While petitioner also contends that he was improperly deniedcopies of written mail watch authorization forms, the investigating officer's testimony establishedthe authorization for the mail watch. Thus, we find that a copy of the written authorization formwas not necessary. Indeed, the Hearing Officer properly denied as redundant the requestedadditional witness testimony regarding the authorization of the mail watch (see Matter of Knight v McGinnis, 10AD3d 754, 755 [2004]). Furthermore, as petitioner failed to inform the Hearing Officer ofhis desire to call as witnesses the other inmates involved in the operation whose identities weredisclosed at the hearing, his right to call them was waived (see Matter of Vigliotti v Duncan, 10 AD3d 776, 777 [2004], lvdismissed 4 NY3d 738 [2004]). Although petitioner also claims that the Hearing Officererred in failing to provide him a copy of his girlfriend's statement to the investigating officer, wefind no prejudice to petitioner as that statement was read into the record (see Matter of Mackie v Goord, 49AD3d 952, 953 [2008]).
Finally, the misbehavior report, hearing testimony and confidential information submitted tothe Hearing Officer that is contained in the record provide substantial evidence supporting thedetermination of guilt (see Matter ofWare v Hendel, 42 AD3d 601, 602 [2007]). The testimony of petitioner's mother thatthe inmates sent her money as birthday gifts for her granddaughter presented a credibility issuefor resolution by the Hearing Officer (see Matter of Reid v Goord, 34 AD3d 954, 955 [2006]).
Cardona, P.J., Carpinello, Malone Jr. and Stein, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.