| Matter of Kirshtein v Bezio |
| 2010 NY Slip Op 09438 [79 AD3d 1497] |
| December 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Michael Kirshtein, Petitioner, v Norman R.Bezio, as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
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 the Commissioner of Correctional Serviceswhich found petitioner guilty of violating certain prison disciplinary rules.
During an investigation into drug activity at Coxsackie Correctional Facility in Greene County,investigators monitored petitioner's telephone calls and determined that he had arranged with a visitor tosmuggle drugs into the facility. When the visitor arrived, she was questioned by investigators and,ultimately, surrendered a number of balloons which had been secreted in her body and appeared tocontain heroin and marihuana. As a result, petitioner was served with a misbehavior report charging himwith conspiracy to smuggle drugs, smuggling, abuse of telephone privileges and violation of visitingprocedures. A tier III disciplinary hearing ensued, after which petitioner was found guilty of all charges.That determination was upheld on administrative review, with a reduction in the penalty assessed.Petitioner thereafter commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, hearing testimony of the investigators, photographs andmyriad supporting documentation provide substantial evidence to support the determination of guilt (see Matter of Brown v Bezio, 76 AD3d741, 742 [2010]; Matter of [*2]Haynes v Bezio, 73 AD3d 1295, 1296 [2010]). Contrary topetitioner's contention, the lead investigator established, through her testimony and written reports, thatpetitioner used the facility telephone to arrange for drugs to be smuggled into the facility and thatpetitioner's visitor came to the facility and surrendered multiple items that had been secreted in hervagina and anus. Further, while the record is unclear regarding whether petitioner received the properdrug testing documentation, we note that such documentation is unnecessary to substantiate smugglingand conspiracy charges (see Matter ofQuartieri v New York State Dept. of Correctional Servs., 70 AD3d 1071, 1072 [2010]; Matter of James v Fischer, 57 AD3d1064, 1065 [2008]). With regard to the misbehavior report, we find that it was sufficiently detailedto apprise petitioner of the charges against him and enable him to prepare a defense (see Matter of Arriaga v Smith, 70 AD3d1160, 1160 [2010]; Matter of Linares vFischer, 59 AD3d 761 [2009], lv denied 12 NY3d 709 [2009]).
Turning to petitioner's procedural contentions, the appropriate extensions were requested andreceived and the hearing was completed within the allotted time (see Matter of Ifill v Fischer, 72 AD3d 1367, 1368 [2010]; Matter of Thompson v Votraw, 65 AD3d1403, 1404 [2009]). Our review of the record does not demonstrate that petitioner receivedinadequate assistance or that he was denied the opportunity to call witnesses or present documentaryevidence. In particular, we find that the Hearing Officer properly allowed investigators not to answerpetitioner's questions regarding the search and arrest of his visitor, inasmuch as it bore no relevance tothe charges for which he was ultimately found guilty (see Matter of Covington v Smith, 75 AD3d 708, 708 [2010]). Lastly,the record establishes that the determination resulted from the voluminous evidence presented againstpetitioner, rather than any claimed hearing officer bias (see Matter of Ortiz v Fischer, 75 AD3d 1042, 1043 [2010]).
We have examined petitioner's remaining arguments and find them to be either unpreserved orunpersuasive.
Mercure, J.P., Rose, Kavanagh, Garry and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.