| Matter of Engles v Fischer |
| 2010 NY Slip Op 08422 [78 AD3d 1410] |
| November 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jessie Engles, Petitioner, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court,entered in Albany County) to review a determination of respondent Commissioner of CorrectionalServices which found petitioner guilty of violating certain prison disciplinary rules.
While petitioner was in line to enter the law library, a routine pat frisk of inmates was conductedand the folder that petitioner was carrying was searched by a correction officer. Inside the folder, theofficer found documents, some of which had been altered, including a photocopy of a check for asubstantial sum of money made out to petitioner and a law firm. As a result, petitioner was charged in amisbehavior report with smuggling and forgery. He was found guilty of the charges following a tier IIIdisciplinary hearing, and the determination was later affirmed on administrative review. This CPLRarticle 78 proceeding ensued.
We confirm. The misbehavior report, together with the testimony of the correction sergeant whoauthored it and the correction officer who conducted the search, as well as the documents that wereconfiscated, provide substantial evidence supporting the determination of guilt (see Matter of Brown v Fischer, 73 AD3d1362 [2010]; Matter of Hernandez vFischer, 67 AD3d 1225, 1225 [2009]). Contrary to petitioner's claim, there was no violationof the procedure [*2]set forth in 7 NYCRR 721.3 for viewing inmatecorrespondence inasmuch as the search of the folder containing the subject documents was donepursuant to a random pat frisk of inmates going to the law library. Furthermore, there is no indication inthe record that the Hearing Officer was biased or that the determination at issue flowed from anyalleged bias (see Matter of Lewis vFischer, 67 AD3d 1241, 1242 [2009]; Matter of Mobley v Dubray, 57 AD3d 1055, 1056 [2008]). Petitioner'sremaining contentions have either not been preserved for our review or are lacking in merit.
Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.