| Matter of Smiton v New York State Dept. of CorrectionalServs. |
| 2010 NY Slip Op 01035 [70 AD3d 1148] |
| February 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jeremy Smiton, Petitioner, v New York StateDepartment of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Owen Demuth 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.
As the result of an ongoing investigation, petitioner was charged in a misbehavior reportwith conspiring to introduce controlled substances, violating facility telephone procedures,exchanging his personal identification number (hereinafter PIN) and violating facility packageprocedures. Specifically, it was determined that petitioner requested that a phone number in thename of a relative be added to his approved calling list and that he subsequently gave his PIN,which is required to make telephone calls to numbers on your calling list, to another inmate. Thatinmate used petitioner's PIN to call the recently added telephone number, which actuallybelonged to the caller's brother, and arranged for heroin and marihuana to be smuggled into thefacility. Following a tier III disciplinary hearing, petitioner was found guilty of all charges. Thisdetermination was affirmed on administrative appeal, prompting this CPLR article 78proceeding.
We confirm. Contrary to petitioner's contention, the determination of guilt was supported bysubstantial evidence, including the misbehavior report, confidential evidence and hearingtestimony (see Matter of McFarlane vFischer, 65 AD3d 769, 770 [2009]; Matter of Johnson v Rock, 64 AD3d 1096 [2009], lvdenied 13 NY3d 713 [2009]; Matter of Linares [*2]v Fischer, 59AD3d 761 [2009], lv denied 12 NY3d 709 [2009]). Petitioner's correction counselortestified that petitioner himself requested that the counselor add the telephone number inquestion to petitioner's calling list. The correction officer who authored the misbehavior reporttestified that his investigation revealed that the phone number was used in an attempt to smuggledrugs into the facility and that petitioner was involved in the conspiracy by agreeing to add thephone number to his calling list and then giving his PIN to a coconspirator. Petitioner's claimthat he was not involved in the conspiracy and that someone else had added the telephonenumber to his calling list, by using petitioner's department identification number and a surnamecommon in petitioner's family, presented a credibility issue for the Hearing Officer to resolve(see Matter of McFarlane v Fischer, 65 AD3d at 771). Petitioner also argues that hecannot be found guilty of conspiracy to introduce drugs into the correctional facility because theinmate to whom the package containing drugs was addressed was not found guilty of smuggling.This contention is without merit, as petitioner's involvement in a conspiracy to introduce thedrugs into the facility was supported by substantial evidence and is punishable as a completedoffense (see generally Matter of Morris v O'Keefe, 240 AD2d 994, 995 [1997];Matter of Tate v Senkowski, 215 AD2d 903, 904-905 [1995], lv denied 86 NY2d708 [1995]). Finally, as petitioner's involvement in the conspiracy makes him subject to the samepunishment as a violator of the disciplinary rule (see 7 NYCRR 270.3 [b]) and given theserious nature of the offense, we do not find that the penalty imposed was so shocking to one'ssense of fairness as to be excessive (seeMatter of Martinez v Goord, 48 AD3d 851 [2008]).
Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.