| Matter of Sanders v LaClair |
| 2009 NY Slip Op 08541 [67 AD3d 1226] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jerry Sanders, Petitioner, v Darwin LaClair, asSuperintendent of Great Meadow Correctional Facility, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Washington County) to review a determination of the Commissioner ofCorrectional Services which found petitioner guilty of violating certain prison disciplinary rules.
Following the tape recording of several of petitioner's telephone calls during a confidentialinvestigation, he was charged in a misbehavior report with, among other things, drug possession,smuggling and unauthorized third-party telephone calls. At the conclusion of a tier IIIdisciplinary hearing, petitioner was found guilty of the enumerated charges. The determinationwas upheld on administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, unusual incident report, tape recordings of petitioner'stelephone calls and testimony from the Inspector General's investigator provide substantialevidence to support the determination that petitioner conspired with his wife and others tosmuggle narcotics into the correctional facility (see Matter of James v Fischer, 57 AD3d 1064, 1064-1065 [2008];Matter of Gomez v Leclaire, 53AD3d 994, 995 [2008]; Matter ofAntinuche v Goord, 16 AD3d 743, 744 [2005]). Contrary to petitioner's contention, thefact that [*2]drugs were not brought into the facility does notnegate the finding of guilt with regard to the drug possession and smuggling charges, inasmuchas the rules were violated when petitioner conspired to bring them into the facility (see 7NYCRR 270.2 [B] [14] [xv]; [15] [i]; Matter of Gomez v Leclaire, 53 AD3d at 995; Matter of Ware v Hendel, 42 AD3d601, 602 [2007]).
Turning to petitioner's procedural claims, we find that the acts of misconduct weresufficiently detailed in the misbehavior report so as 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]).Additionally, we find no merit in petitioner's claim that he was prejudiced by not receiving atranscript of the tapes of his telephone calls inasmuch as the tapes themselves were playedduring the hearing (see generally Matterof Ryan v Goord, 12 AD3d 799, 800 [2004]; Matter of Cintron v Goord, 280AD2d 794, 794-795 [2001]).
We have examined petitioner's remaining claims and have determined that they are withoutmerit.
Mercure, J.P., Peters, Spain, Malone Jr. and Kavanagh, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.