| Matter of Vargas v Selsky |
| 2010 NY Slip Op 00338 [69 AD3d 1078] |
| January 14, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jose Vargas, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold 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 the Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
Following his transfer to Shawangunk Correctional Facility in Ulster County, a search ofpetitioner's sealed property bags revealed a metal shank secreted in the sole of a shower shoeand, as a result, he was served with a misbehavior report charging him with smuggling andpossession of a weapon. After a tier III disciplinary hearing, petitioner was found guilty on bothcharges. His administrative appeal was unsuccessful, after which petitioner commenced thisCPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer who authored thereport, pictures of the alleged weapon and inspection of the property bags provide substantialevidence to support the determination of petitioner's guilt (see Matter of Jackson v Dubray, 56 AD3d 919 [2008]; Matter of Otero v Fischer, 54 AD3d1082 [2008]). Although the personal property form did not list shower shoes as beingamong the property transferred from petitioner's previous facility, the form did indicate threepairs of sandals were packed. Furthermore, the correction officer testified that he unsealed andunpacked the property bags in petitioner's presence, and an inspection of the bags showed thatthere were no holes through [*2]which additional items couldhave been added in transit. To the extent that petitioner denied the shower shoes were hisproperty, that presented a credibility issue for the Hearing Officer to resolve (see Matter of Griffin v Selsky, 60AD3d 1247, 1248 [2009]; Matterof Hall v Selsky, 52 AD3d 1078 [2008]).
As for petitioner's claim that his rights were violated because he did not receive aSpanish-speaking assistant, we note that he never requested such, either at the hearing or on hisinmate assistance form. The assistance form, notably, informs inmates of their right to assistancein both English and Spanish and petitioner completed the English portion of the form. In anyevent, petitioner was provided with all of the materials that he requested prior to the hearing,including directives, reports, memos and his property transfer sheet, and he was provided aphotocopy of the weapon at the hearing itself. In addition, the Hearing Officer acquiredvideotapes and property bags that were requested by petitioner during the hearing and, as such,he has failed to show any prejudice as a result of the purported inadequacies of his assistance (see Matter of Liner v Fischer, 56AD3d 1088, 1088 [2008], lv denied 12 NY3d 703 [2009]; Matter of Davis v Goord, 46 AD3d955, 956-957 [2007], lv dismissed 10 NY3d 821 [2008]).
Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.