| Matter of James v Fischer |
| 2008 NY Slip Op 09521 [57 AD3d 1064] |
| December 4, 2008 |
| Appellate Division, Third Department |
| In the Matter of Steven James, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
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 ofviolating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with conspiring to introducemarihuana into the facility and soliciting another person to smuggle marihuana into the facility. At theconclusion of a tier III disciplinary hearing, petitioner was found guilty of both charges. Thatdetermination was administratively affirmed with a modified penalty and this CPLR article 78proceeding seeking annulment ensued.
We confirm. The determination of guilt is supported by substantial evidence including themisbehavior report and corroborating hearing testimony from the correction officer who authored it,together with the recordings of petitioner's telephone conversations (see Matter of Constantino v Goord, 33AD3d 1093, 1093-1094 [2006]). Petitioner's procedural claims—alleging that his dueprocess rights were violated because the drug testing documentation was not provided to him or readinto the record—are unavailing inasmuch as "where, as here, an inmate is charged with smugglingand conspiracy, the documentation requirements of 7 NYCRR 1010.5 do not apply" (Matter of Mackie v Goord, 49 AD3d952, 953 [2008]; see Matter ofMastropietro v New York State Dept. of Corrections, 52 AD3d 1125, 1126 [2008], lvdenied 11 NY3d 711 [2008]; cf. Matterof Williams v Goord, 28 AD3d 897, 898 [2006]).[*2]
Spain, J.P., Carpinello, Rose, Kavanagh and Stein, JJ., concur.Adjudged that the determination is confirmed, without costs, and petition dismissed.