Opinion
No. 504589.
November 13, 2008.
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.
Thomas Jimenez, Elmira, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Cardona, P.J., Carpinello, Malone Jr. and Stein, JJ.
Petitioner, an inmate, was charged in a misbehavior report with conspiring to introduce controlled substances into a correctional facility, smuggling, engaging in three-way telephone conversations and violating facility packaging procedures. The misbehavior report was based on petitioner's alleged involvement in a scheme where his mother would send various inmates controlled substances hidden in food packages and the inmates would send her money. Following a tier III hearing, he was found guilty of all charges. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. Initially, we find that petitioner failed to establish that he was provided inadequate employee assistance. The record reveals that he was provided with some of the documents he requested at or before the hearing — or access to them or they were read into the record — and those documents that were not provided were determined to be confidential or nonexistent ( see Matter of Antinuche v Goord, 16 AD3d 743, 744). While petitioner also contends that he was improperly denied copies of written mail watch authorization forms, the investigating officer's testimony established the authorization for the mail watch. Thus, we find that a copy of the written authorization form was not necessary. Indeed, the Hearing Officer properly denied as redundant the requested additional witness testimony regarding the authorization of the mail watch ( see Matter of Knight v McGinnis, 10 AD3d 754, 755). Furthermore, as petitioner failed to inform the Hearing Officer of his desire to call as witnesses the other inmates involved in the operation whose identities were disclosed at the hearing, his right to call them was waived ( see Matter of Vigliotti v Duncan, 10 AD3d 776, 777, lv dismissed 4 NY3d 738). Although petitioner also claims that the Hearing Officer erred in failing to provide him a copy of his girlfriend's statement to the investigating officer, we find no prejudice to petitioner as that statement was read into the record ( see Matter of Mackie v Goord, 49 AD3d 952, 953).
Finally, the misbehavior report, hearing testimony and confidential information submitted to the Hearing Officer that is contained in the record provide substantial evidence supporting the determination of guilt ( see Matter of Ware v Hendel, 42 AD3d 601, 602). The testimony of petitioner's mother that the inmates sent her money as birthday gifts for her granddaughter presented a credibility issue for resolution by the Hearing Officer ( see Matter of Reid v Goord, 34 AD3d 954, 955).
Adjudged that the determination is confirmed, without costs, and petition dismissed.