| Matter of Grant v Prack |
| 2011 NY Slip Op 06059 [86 AD3d 885] |
| July 28, 2011 |
| Appellate Division, Third Department |
| In the Matter of Tommy Grant, Petitioner, v Albert Prack,as Director of Special Housing and Inmate Disciplinary Programs,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff 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.
As a result of an investigation, correction officials obtained information that petitioner wasextorting another inmate for his commissary purchases. A correction officer actually observed theother inmate return from the commissary and turn over his commissary items to petitioner. Uponsearching petitioner's cell, the officer found the subject items for which petitioner did not have areceipt. Petitioner explained that he was holding the items for the other inmate. As a result, hewas charged in a misbehavior report with extortion and engaging in an unauthorized exchange.Following a tier III disciplinary hearing, he was found guilty of the charges and the determinationwas affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
Petitioner's sole contention is that the misbehavior report did not afford him adequate noticeof the charges as required by 7 NYCRR 251-3.1 (c) (3) because it incorrectly stated that [*2]the incident occurred on April 13, 2010 when it actually happenedon April 14, 2010.[FN*]Although petitioner raised this objection at the hearing and it was established that thecommissary purchase did, in fact, occur on April 14, 2010, we find petitioner's claim to bewithout merit. The misbehavior report set forth the rule violations and described in detail theconduct providing the basis for the charges. Notably, petitioner did not dispute possessing theitems that the inmate purchased at the commissary. Notwithstanding the minor date discrepancy,the misbehavior report was sufficiently specific to apprise petitioner of the charges so as toenable him to prepare a defense (seeMatter of Ponder v Fischer, 54 AD3d 1094, 1095 [2008]; Matter of Camacho vGoord, 284 AD2d 678, 678 [2001]). Furthermore, petitioner has not demonstrated that hewas prejudiced by the inaccuracy (seeMatter of Arriaga v Smith, 70 AD3d 1160, 1160 [2010]; Matter of Argentina v Bezio, 69 AD3d1287, 1288 [2010], lv denied 14 NY3d 709 [2010]). Therefore, we find no reason todisturb the determination of guilt.
Spain, J.P., Rose, Kavanagh, Stein and Egan Jr., JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote *: While the petition raised aquestion of substantial evidence and the proceeding was properly transferred to this Court,petitioner has abandoned such claim by not addressing it in his brief (see Matter of Garcia v Smith, 78 AD3d1362, 1363 n [2010]).