| Matter of Quartieri v New York State Dept. of CorrectionalServs. |
| 2010 NY Slip Op 00742 [70 AD3d 1071] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Paul Quartieri, Petitioner, v New York StateDepartment of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Zainab A. Chaudhry 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.
Petitioner, a prison inmate, was charged in a misbehavior report with conspiring to introducedrugs into the facility and smuggling after his wife was apprehended with a large quantity ofmarihuana during a family reunion visit. After surrendering the drugs, petitioner's wife signed astatement acknowledging that the substance surrendered was marihuana, that petitioner hadarranged for her to purchase and transport the drugs into the facility and that she had smuggleddrugs to petitioner on 10 previous occasions during his incarceration. Following a tier IIIdisciplinary hearing, petitioner was found guilty of both charges. That determination wasaffirmed administratively with a reduction in the penalty imposed, and petitioner thereaftercommenced this CPLR article 78 proceeding seeking annulment.
We confirm. The detailed misbehavior report, together with the testimony of the investigatorand the signed statement by petitioner's wife that he had orchestrated her efforts to smugglemarihuana into the facility provide substantial evidence to support the determination of guilt (see Matter of Schleede v Rabsatt, 65AD3d 1413, 1413 [2009]; Matter of Rosa v Goord, 14 [*2]AD3d 747, 747-748 [2005]). The fact that petitioner's wife recantedher statement during the hearing and petitioner denied any involvement raised issues ofcredibility to be resolved by the Hearing Officer (see Matter of Schleede v Rabsatt, 65AD3d at 1413; Matter of Jordan vFischer, 53 AD3d 1013 [2008]).
While petitioner challenges the basis for determining that the confiscated substance wasmarihuana, we note that where an inmate is charged with smuggling and conspiracy, thedocumentation requirements of 7 NYCRR 1010.5 are not applicable and, in any event,petitioner's wife admitted that the substance was marihuana (see Matter of James v Fischer, 57 AD3d 1064, 1064-1065 [2008];Matter of Mackie v Goord, 49AD3d 952, 953 [2008]). Our review of the record demonstrates that petitioner was affordeda fair and impartial hearing and the outcome was a result of the evidence presented and not anyalleged bias on the part of the Hearing Officer (see Matter of Stallone v Fischer, 65 AD3d 1410 [2009]; Matter of Davis v Fischer, 64 AD3d847, 848 [2009], lv denied 13 NY3d 709 [2009]). Finally, we reject petitioner'schallenge to the severity of the modified penalty imposed, inasmuch as it was not so shocking toone's sense of fairness as to be excessive (see Matter of Martinez v Goord, 48 AD3d 851 [2008]; Matter of Rivera v Goord, 38 AD3d964, 964-965 [2007]).
Petitioner's remaining claims, to the extent not specifically addressed herein, have beenexamined and found to be either unpreserved or without merit.
Cardona, P.J., Peters, Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.