| Matter of Caldwell v Fischer |
| 2009 NY Slip Op 08123 [67 AD3d 1176] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of Ricky Caldwell, 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 SupremeCourt, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with conspiring to introducedrugs into the facility and smuggling after his brother was found with five grams of heroinduring a visit and confessed that petitioner had asked him to bring the drugs into the prison.Following a tier III disciplinary hearing, petitioner was found guilty of both charges. Followingan unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, supporting documentation and statement by petitioner'sbrother provide substantial evidence of petitioner's guilt (see Matter of Smith v Dubray,58 AD3d 968, 968-969 [2009]; Matterof Marino v New York State Dept. of Correctional Servs., 41 AD3d 1004, 1005 [2007],appeal dismissed and lv denied 9 NY3d 940 [2007]). Contrary to petitioner's contention,the misbehavior report was sufficiently detailed to afford him the opportunity to prepare adefense (see Matter of Dolan vGoord, 41 AD3d 1119, 1119 [2007]; Matter of Toney v Goord, 26 AD3d 613, 614 [2006]). Further,during the course of the hearing, petitioner invoked his 5th Amendment rights and stated that heno longer wished to [*2]call anyone to testify, thus waiving anyclaim that he was denied the right to call witnesses (see Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]; Matter of Dixon v Brown, 62 AD3d1223, 1224 [2009]). Finally, the record does not substantiate petitioner's claim that theHearing Officer was biased or that the determination flowed from any bias (see Matter of Gimenez v Artus, 63AD3d 1461, 1462 [2009]; Matter of Chavis v Goord, 58 AD3d 954, 955 [2009]).
Petitioner's remaining contentions, including his assertion that the penalty imposed wasexcessive, have been examined and found to be lacking in merit.
Cardona, P.J., Mercure, Lahtinen, Kane and Garry, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.