| Matter of McFarlane v Fischer |
| 2009 NY Slip Op 06203 [65 AD3d 769] |
| August 13, 2009 |
| Appellate Division, Third Department |
| In the Matter of Wayne McFarlane, 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.
As a result of an ongoing investigation, petitioner, then an inmate at Sing Sing CorrectionalFacility in Westchester County, was charged in a misbehavior report with conspiring tointroduce controlled substances, soliciting others to smuggle contraband, telephone directiveviolations and violations of visiting procedures. Specifically, after monitoring the inmate phonesystem, it was determined that petitioner solicited and conspired with his wife and son to havethem smuggle marihuana and heroin into the facility during an upcoming visit. On the day of thescheduled visit, petitioner's wife and son were interviewed and voluntarily surrenderedsubstances which later tested positive as 31 grams of marihuana and 26 grams of heroin.Following a multi-day tier III disciplinary hearing on the matter, a Hearing Officer foundpetitioner guilty of all the aforementioned charges. Petitioner's administrative appeal resulted ina reduction of the penalty imposed but was otherwise unsuccessful, and he thereaftercommenced this proceeding pursuant to CPLR article 78 seeking to annul the determination ofguilt.
We confirm. Contrary to petitioner's assertion, the determination of his guilt was supportedby substantial evidence including, among other things, the detailed misbehavior report, [*2]together with the testimony adduced at the hearing and theconfidential testimony considered by the Hearing Officer in camera, such as the writtenstatement of petitioner's wife, and the recorded telephone conversation between petitioner, hiswife and his son (see Matter of Batts vFischer, 60 AD3d 1129 [2009]; Matter of Jimenez v Fischer, 56 AD3d 924, 926 [2008]; Matter of Torres v Fischer, 53 AD3d1008, 1009 [2008]; Matter ofMastropietro v New York State Dept. of Corrections, 52 AD3d 1125, 1126 [2008],lv denied 11 NY3d 711 [2008]; Matter of Ross v Selsky, 49 AD3d 1065, 1065 [2008]; Matter of Jackson v McGinnis, 47AD3d 1100 [2008]). Although petitioner denied conspiring to smuggle drugs into thefacility, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Gomez v Leclaire, 53AD3d 994, 995-996 [2008]; Matterof Reed v Goord, 16 AD3d 796, 796-797 [2005]). Petitioner's remaining contentions,including his assertion that he was denied the right to call witnesses to testify on his behalf andhis assertion that the incomplete hearing transcript prevents meaningful review, have beenexamined and found to be lacking in merit (see Matter of Berry v Goord, 42 AD3d 614 [2007]; Matter of Callender v Selsky, 41AD3d 1065, 1066 [2007]; see alsoMatter of Alvarez v Goord, 30 AD3d 118, 119-121 [2006]).
Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.