| Matter of Minton v Fischer |
| 2010 NY Slip Op 04289 [73 AD3d 1347] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of Tyrone Minton, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
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Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Clinton 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, among other things,drug possession, smuggling and a facility visitation violation after an investigation suggestedthat he made arrangements by telephone to have drugs delivered to the facility. After a tier IIIdisciplinary hearing, petitioner was found guilty of the listed charges. The determination wasmodified on administrative appeal to reduce the penalty imposed, and this CPLR article 78proceeding ensued.
Respondent concedes that the part of the determination finding petitioner guilty ofsmuggling and violating facility visitation procedures is not supported by substantial evidenceand must be annulled. As the penalty included the loss of good time, the matter accordingly mustbe remitted to respondent for a redetermination thereof (see Matter of Wheeler-Whichard v Fischer, 69 AD3d 1286, 1286[2010]; Matter of Cespedes v New YorkState Dept. of Correctional Servs., 68 AD3d 1429, 1430 [2009]).
As to the drug possession charge, the misbehavior report, testimony of the investigator whoauthored it and the transcripts of the recorded telephone conversations provide substantial [*2]evidence that petitioner was involved in a conspiracy to bring drugsinto the facility (see Matter of Sanders vLaClair, 67 AD3d 1226, 1226-1227 [2009]; Matter of Florentino v Washburn, 47 AD3d 1169, 1170 [2008]).We have considered petitioner's other contentions and found them to be without merit.
Cardona, P.J., Peters, Rose, Kavanagh and Garry, JJ., concur. Adjudged that thedetermination is modified, without costs, by annulling so much thereof as found petitioner guiltyof smuggling and of violating facility visitation procedures and imposed a penalty; petitiongranted to that extent, respondent is directed to expunge all references thereto from petitioner'sinstitutional record and matter remitted to respondent for an administrative redetermination ofthe penalty imposed on the remaining violations; and, as so modified, confirmed.