| Matter of Smart v New York State Dept. of CorrectionalServs. |
| 2010 NY Slip Op 06262 [75 AD3d 1017] |
| July 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Deshawn Smart, 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.
During the course of an investigation, correction officials obtained information thatpetitioner conspired with his wife to bring drugs into the correctional facility during visitation.As a result, he was charged in a misbehavior report with smuggling, conspiring to possess drugs,violating facility visitation procedures and violating facility correspondence procedures.Petitioner was found guilty of these charges at the conclusion of a tier III disciplinary hearingand the determination was affirmed on administrative appeal. This CPLR article 78 proceedingensued.
We confirm. The misbehavior report, together with the testimony of the investigator whoprepared it, as well as the documentary evidence, provide substantial evidence supporting thedetermination of guilt (see Matter ofNelson v Fischer, 73 AD3d 1365, 1366 [2010]; Matter of Cruz v Goord, 41 AD3d 1122, 1122-1123 [2007]; Matter of Horton v Allard, 25 AD3d1048, 1049 [2006]). The misbehavior report was prepared as the result of an ongoinginvestigation and, contrary to petitioner's claim, was sufficiently specific to enable him toprepare an adequate defense (see Matter of Powell v Goord, 34 AD3d 876, 877 [2006];Matter of Jackson v Smith, 13AD3d 685, 685-686 [2004], lv denied 4 NY3d 707 [2005]). Furthermore, our reviewof the record does not reveal that the Hearing Officer was biased or that the determinationflowed from [*2]any alleged bias (see Matter of Caldwell v Fischer, 67AD3d 1176, 1177 [2009]; Matterof Martino v Goord, 38 AD3d 958, 959 [2007]). Petitioner's remaining contentionseither have not been preserved for our review or are lacking in merit.
Cardona, P.J., Spain, Rose, Malone Jr. and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.