| Matter of Tafari v Selsky |
| 2010 NY Slip Op 07087 [77 AD3d 991] |
| October 7, 2010 |
| Appellate Division, Third Department |
| In the Matter of Injah Tafari, Petitioner, v Donald Selsky, asDirector of Special Housing and Inmate Disciplinary Programs,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 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 smuggling andpossessing items in a prohibited area after a strip search in the mental health unit revealed that hehad a bag of tobacco, several cigarettes, rolling papers, matches and a lighter secreted in hisbuttocks. Following a tier III disciplinary hearing, he was found guilty of both charges. Thatdetermination was affirmed on administrative appeal and petitioner, thereafter, commenced thisCPLR article 78 proceeding.
We confirm. To the extent that petitioner challenges the evidence presented, we find that thedetailed misbehavior report, testimony of the correction officer who authored the report, picturesof the contraband and supporting documentation provide substantial evidence to support thedetermination of guilt (see Matter ofRobertson v Fischer, 70 AD3d 1081, 1081 [2010]; Matter of Vargas v Selsky, 69 AD3d 1078, 1078 [2010]). Petitionerwas not denied due process because the contraband was destroyed prior to the hearing where therecord demonstrates that such was done not in bad faith, but rather for hygienic purposes (seeMatter of Russell v Selsky, [*2]50 AD3d 1412, 1413 [2008];Matter of Morgan v Goord, 10AD3d 792, 793 [2004]). Finally, we reject petitioner's assertions that the misbehavior reportwas defective and that the hearing was not timely completed. Although the report date wasincorrectly written as October 11, 2006, the correction officer who authored the report testifiedthat the report was actually written on October 20, 2006, the date of the incident, which wasreported correctly on the form. Therefore, the report contained sufficient information to apprisepetitioner of the charges against him (see Matter of Huston v Bezio, 69 AD3d 1259, 1260 [2010]) and thehearing, concluded on November 2, 2006, was timely (see 7 NYCRR 251-5.1 [b]).
We have examined petitioner's remaining contentions, including that he did not receiveadequate assistance, and find them to be unpreserved or without merit.
Mercure, J.P., Spain, Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.