| Matter of Shepherd v Fischer |
| 2009 NY Slip Op 05234 [63 AD3d 1473] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Eon Shepherd, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the SupremeCourt, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
After prison officials received an anonymous note regarding petitioner's drug activity, asearch of his cell and person was authorized. The search revealed several items considered to becontraband, including an extra razor, wooden utensils, a metal hot pot, and several packagescontaining a substance that later tested positive for methamphetamine. Following a tier IIIdisciplinary hearing, petitioner was found guilty of possession of contraband, drug possessionand smuggling. An unsuccessful administrative appeal ensued, and petitioner then commencedthis CPLR article 78 proceeding.
We confirm. To the extent that petitioner challenges the evidentiary basis of thedetermination, we conclude that the detailed misbehavior reports, the testimony at the hearing,the drug test results and the documentary evidence provide substantial evidence to support thedetermination (see Matter of Davis v Prack, 58 AD3d 977, 977 [2009]; Matter of Cooper v Selsky, 43 AD3d1254, 1255 [2007], lv dismissed 9 NY3d 1026 [2008]). Petitioner's contention thatthe officers planted the drugs in his hair presented a credibility question for the Hearing Officerto resolve (see Matter of Griffin vSelsky, 60 AD3d 1247, 1248 [2009]; Matter of Davis v Prack, 58 AD3d at 977).[*2]
Furthermore, while we agree with petitioner that therequired statement of scientific principles should have been included in the record (see 7NYCRR 1010.5 [d]), we note that petitioner acknowledged receiving this document prior to thehearing, and the correction officer who performed the drug test testified that she was certified todo so and that proper testing procedures were followed. Under these circumstances, annulmentof the determination is unwarranted (see e.g. Matter of Delvalle v Coughlin, 188 AD2d812, 812 [1992]; compare Matter ofGonzalez v Selsky, 23 AD3d 724, 725 [2005]; Matter of Hernandez v Selsky,306 AD2d 595, 596 [2003], lv denied 100 NY2d 514 [2003]). Finally, there was norequirement that the Hearing Officer make an independent assessment about the credibility of theanonymous letter that prompted the investigation of petitioner, inasmuch as the letter was neitherrelied upon nor relevant to the determination of guilt (see Matter of Kearney v Fischer, 51 AD3d 1185, 1186 [2008];Matter of Delvalle v Coughlin, 188 AD2d at 812).
We have examined petitioner's remaining claims and find them to be without merit.
Mercure, J.P., Spain, Lahtinen, Malone Jr. and Stein, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.