| Matter of Matthews v Fischer |
| 2012 NY Slip Op 03914 [95 AD3d 1529] |
| May 17, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Luke Matthews, Petitioner, v BrianFischer, as Commissioner of Corrections and Community Supervision,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Rose, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent which foundpetitioner guilty of violating certain prison disciplinary rules.
After confidential information was received by the Inspector General's office that petitionerwas conspiring to smuggle drugs into the correctional facility in which he was incarcerated,petitioner's telephone calls were monitored and recorded. As a result of those calls, prisonofficials believed that petitioner was, indeed, conspiring with his family, and when petitioner'swife came to visit several weeks later, she was intercepted by officials. Because she refused tosubmit to a search, however, no drugs were found and she was released. Nevertheless, basedupon the telephone calls, petitioner was charged in a misbehavior report with conspiracy topossess drugs, smuggling, abuse of telephone privileges and violation of visiting roomprocedures. Following a tier III disciplinary hearing, he was found guilty of all charges. Thatdetermination was affirmed on administrative appeal, after which petitioner commenced thisCPLR article 78 proceeding.
To the extent that petitioner challenges the sufficiency of the evidence upon which the [*2]finding of guilt was based, we find that the misbehavior report,recorded telephone calls and testimony of the investigator provide substantial evidence to supportthe determination of guilt (see Matter ofStinson v Prack, 87 AD3d 1218, 1219 [2011]; Matter of Minton v Fischer, 73 AD3d 1347, 1348 [2010],appeal dismissed 15 NY3d 848 [2010]). We reject petitioner's contention that he couldnot be found guilty of violating visiting room procedures when he did not actually enter thevisiting room, inasmuch as inmates involved in a conspiracy or an attempt to violate adisciplinary rule will be liable to the same degree as violators of such rules, "whether or not thetext of an actual rule contains such terms" (7 NYCRR 270.3 [b]; see Matter of Gomez v Fischer, 89AD3d 1341, 1341 [2011]). Petitioner was not denied relevant documents, as the documentsrequested either did not exist or were confidential based upon ongoing investigations (see Matter of Dennis v Bezio, 82 AD3d1398, 1399 [2011]; Matter ofUmoja v Bezio, 64 AD3d 1066, 1066 [2009]). Finally, our review of the recorddemonstrates that petitioner's guilt was premised upon the evidence presented at the hearing,rather than any alleged hearing officer bias (see Matter of Lopez v Fischer, 91 AD3d 1223, 1224 [2012]). Wehave examined petitioner's remaining claims and find them to be without merit.
Peters, P.J., Lahtinen, Malone Jr. and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.