| Matter of Schleede v Rabsatt |
| 2009 NY Slip Op 06486 [65 AD3d 1413] |
| September 17, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jamell Schleede, Petitioner, v Calvin O. Rabsatt,as Superintendent of Riverview Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in St. Lawrence County) to review a determination of respondent Commissionerof Correctional Services which found petitioner guilty of violating certain prison disciplinaryrules.
Petitioner was charged in a misbehavior report with smuggling and possessing a controlledsubstance after his girlfriend was detained by correction officials while going to visit petitionerand was found to be in possession of a balloon containing marihuana which she voluntarilyretrieved from her underwear. She admitted to conspiring with petitioner to smuggle marihuanainto the facility and stated that she had done so on prior occasions. Petitioner was found guilty ofthe charges following a tier III disciplinary hearing and the determination was affirmed onadministrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction officialsinvolved in the investigation, as well as the transcript of the telephone conversation betweenpetitioner and his girlfriend, provide substantial evidence supporting the determination [*2]of guilt (see Matter of Porter v Goord, 7 AD3d 847, 848 [2004]; Matterof Surdis v Walsh, 301 AD2d 900 [2003]). Petitioner's opposing testimony and that of hisgirlfriend, who maintained that the marihuana was for her personal use, presented a credibilityissue for the Hearing Officer to resolve (see Matter of Dozier v Selsky, 54 AD3d 1074, 1075 [2008]; Matter of Ramos v Selsky, 48 AD3d863, 864 [2008]). Contrary to petitioner's claim, viewing the misbehavior report as a whole,we find that it gave him adequate notice of the charges to allow him to prepare a defense (see Matter of Catlin v GouverneurCorrectional Facility, 38 AD3d 1025, 1026 [2007]). Lastly, we note that petitioner iswithout standing to challenge the revocation of his girlfriend's visitation privileges (see Matter of Cortorreal v Goord, 36AD3d 1005, 1006 [2007], lv denied 8 NY3d 811 [2007]; Matter of Gomez vHollis, 277 AD2d 551, 552 [2000]). Petitioner's remaining contentions are eitherunpreserved for our review or are lacking in merit.
Cardona, P.J., Spain, Lahtinen, Malone Jr. and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.