| Matter of Taylor v Fischer |
| 2010 NY Slip Op 05639 [74 AD3d 1677] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of Ernest Taylor, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco 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 respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
As the result of an ongoing investigation, petitioner was charged in a misbehavior reportwith, as relevant here, drug possession and smuggling. Following a tier III disciplinary hearing,petitioner was found guilty of both charges. That determination was upheld on administrativeappeal, with a downward modification of the penalty assessed. Petitioner then commenced thisCPLR article 78 proceeding and we confirm.
The misbehavior report, along with hearing testimony and the confidential testimony anddocuments reviewed by the Hearing Officer in camera, provide substantial evidence to supportthe determination of guilt (see Matter ofWillacy v Fischer, 67 AD3d 1099, 1100 [2009]; Matter of Arnold v Fischer, 60 AD3d 1177 [2009]). We also rejectpetitioner's contention that the misbehavior report was defective because it failed to recite thedates, times and places of the alleged violations. Inasmuch as it resulted from an ongoinginvestigation and was based upon confidential information, we find that enough details wereprovided to afford petitioner the opportunity to prepare a defense (see Matter of Willacy vFischer, 67 AD3d at 1100; Matterof Jackson v Smith, 13 AD3d 685, 685-686 [2004], lv denied 4 NY3d 707[2005]). As for petitioner's challenge to the sufficiency and accuracy of the hearing transcript,"there is no [*2]indication that the transcript of the hearing wasdeliberately altered or that significant portions are missing such as to preclude meaningfulreview" (Matter of Costello vSmith, 26 AD3d 566, 567 [2006]; see Matter of McFadden v Venettozzi, 65 AD3d 1401, 1402[2009]; see also Matter of Sanders vHaggett, 72 AD3d 1372 [2010]; Matter of Sital v Fischer, 72 AD3d 1306 [2010]). Finally,petitioner's remaining procedural objections are not preserved by his failure to raise them duringthe hearing or on administrative review (see Matter of White v Superintendent of Wyoming CorrectionalFacility, 69 AD3d 1180 [2010]).
Cardona, P.J., Spain, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.