Opinion
2014-01-23
In the Matter of Paul DAVILA, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Paul Davila, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Paul Davila, Dannemora, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: ROSE, J.P., STEIN, McCARTHY and EGAN JR., JJ.
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 Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
During the course of an investigation of a drug operation that included monitoring petitioner's telephone calls, officials determined that petitioner was conspiring to bring drugs into the facility. As a result, petitioner was charged in a misbehavior report with drug possession, smuggling, making third-party calls, violating telephone program guidelines and exchanging personal identification numbers with another inmate. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed upon administrative appeal. This CPLR article 78 proceeding ensued.
We note that although petitioner raised the issue of substantial evidence in his petition and the matter was properly transferred to this Court, he has abandoned such argument by failing to raise it in his brief ( see Matter of Blocker v. Fischer, 100 A.D.3d 1118, 1118 n., 953 N.Y.S.2d 388 [2012], lv. denied21 N.Y.3d 857, 969 N.Y.S.2d 443, 991 N.E.2d 217 [2013] ).
We reject petitioner's contention that he was prejudiced by the fact that the recorded telephone conversations were not transcribed in the record. He was not denied the right to respond to the evidence, as the hearing transcript reveals that he was given an opportunity to listen to the recordings during the hearing. In addition, inasmuch as the recordings are part of the record, the exclusion of a transcript does not preclude meaningful review of the matter ( see generally Matter of Prout v. Goord, 27 A.D.3d 812, 813, 811 N.Y.S.2d 166 [2006] ).
We also reject petitioner's claim that a meaningful effort was not made to locate a civilian witness that he had requested. The record reflects that the Hearing Officer adjourned the hearing and unsuccessfully attempted to contact the witness, and petitioner did not know where she lived or how to reach her. In our view, the Hearing Officer made reasonable and substantial efforts to contact the witness ( see Matter of Smythe v. Fischer, 101 A.D.3d 1280, 1281, 955 N.Y.S.2d 461 [2012], lv. denied20 N.Y.3d 861, 2013 WL 1150300 [2013]; Matter of Wright v. Bezio, 64 A.D.3d 1109, 1110, 882 N.Y.S.2d 668 [2009] ). Further, the fact that the Hearing Officer presided over other hearings involving the same drug investigation does not establish bias, inasmuch as the record reflects that the Hearing Officer relied only on proof presented at petitioner's hearing in making the determination ( see Matter of Meyers v. Fischer, 85 A.D.3d 1480, 1481, 926 N.Y.S.2d 214 [2011] ). Finally, contrary to petitioner's contention, the detailed nature of the confidential information permitted the Hearing Officer to independently assess its reliability and credibility ( see Matter of Flanders v. Fischer, 105 A.D.3d 1238, 1239, 962 N.Y.S.2d 827 [2013]; Matter of Torres v. Fischer, 101 A.D.3d 1281, 1282, 955 N.Y.S.2d 450 [2012] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.