Opinion
2013-05-16
In the Matter of David CARRERO, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
David Carrero, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
David Carrero, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
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 of violating certain prison disciplinary rules.
Following a confidential investigation, petitioner was charged in a misbehavior report with smuggling and conspiring to introduce drugs into the correctional facility. The charges stemmed from correspondence that petitioner sent to his wife asking her to bring drugs to the correctional facility. Following a tier III disciplinary hearing, he was found guilty of both charges. The determination of guilt was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony and confidential information provide substantial evidence to support the determination of guilt ( see Matter of Garner v. Selsky, 47 A.D.3d 1167, 1168, 849 N.Y.S.2d 456 [2008] ). The testimony of both petitioner and his wife that the code words used in the letters did not refer to narcotics presented a credibility issue for the Hearing Officer to resolve ( see Matter of Reid v. Goord, 34 A.D.3d 954, 955, 823 N.Y.S.2d 316 [2006] ). Petitioner's procedural challenges, including that he was denied documentary evidence and the Hearing Officer was biased, have been reviewed and found to be unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.