| Matter of Gomez v Fischer |
| 2011 NY Slip Op 08524 [89 AD3d 1341] |
| November 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Santiago Gomez, Petitioner, v Brian Fischer, asCommissioner of Corrections and Community Supervision, Respondent. |
—[*1] Eric T. Schneiderman, 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 respondent which found petitioner guilty ofviolating certain prison disciplinary rules.
Petitioner, a prison inmate, was served with a misbehavior report charging him with threats, violentconduct, fighting and gang activity after confidential information was received that he was organizing agang fight in the yard. Following a tier III disciplinary hearing, petitioner was found guilty of all chargesexcept fighting. That determination was affirmed on administrative appeal, after which petitionercommenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer who conducted theinvestigation and confidential information provide substantial evidence to support the determination (see Matter of Williams v Fischer, 84 AD3d1661, 1662 [2011], lv denied 17 NY3d 711 [2011]; Matter of Phipps v Fischer, 82 AD3d 1396, 1397 [2011]). Petitioner'sclaim that he could not be found guilty because the fight never occurred is unavailing, inasmuch as aconspiracy to violate a rule may be punished to the same degree as an actual violation (see 7NYCRR 270.3 [b] [2]; Matter of Smiton vNew York State Dept. of Correctional Servs., 70 AD3d 1148, 1149 [2010]; Matter of Huston v Bezio, 69 AD3d1259, 1260 [2010]).[*2]
Turning to petitioner's procedural contentions, we do not findthat the misbehavior report was deficient due to its omission of specific dates and times and theidentities of petitioner's coconspirators inasmuch as the report was the result of an ongoing investigationand was based upon confidential information (see Matter of Boyd v Fischer, 74 AD3d 1679, 1679-1680 [2010]; Matter of Taylor v Fischer, 74 AD3d1677, 1677 [2010]). Petitioner's claim that he was denied documentary evidence in the form of acertain sign-in sheet for the day in question is unavailing inasmuch as the record shows that thedocument no longer existed at the time of the hearing (see Matter of Dennis v Bezio, 82 AD3d 1398, 1399 [2011]; Matter of Hayes v Fischer, 78 AD3d1396, 1397 [2010]). Finally, we find that the determination of guilt was premised on the evidencepresented, rather than any bias on the part of the Hearing Officer (see Matter of Montgomery v Fischer, 84 AD3d 1666, 1667 [2011]; Matter of Weems v Fischer, 82 AD3d1454, 1456 [2011]).
We have examined petitioner's remaining contentions and have found them to be eitherunpreserved for our review or without merit.
Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.