Matter of Di Rose v. N.Y. State Dept., C

Full title: IN THE MATTER OF RICARDO A. Di ROSE, Petitioner v. NEW YORK STATE…

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 16, 2000

270 A.D.2d 675 (N.Y. App. Div. 2000)

704 N.Y.S.2d 721

Opinion

March 16, 2000

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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Ricardo A. Di Rose, Attica, petitioner in person.

Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.

Before: MERCURE, J.P., CREW III, PETERS, CARPINELLO and MUGGLIN, JJ.

MEMORANDUM AND JUDGMENT

MERCURE, J.P.

Petitioner, a prison inmate, was found guilty of failing to comply with facility correspondence procedures and soliciting services after he wrote a letter to a private investigator and proposed a business transaction unrelated to his incarceration.

Initially, we reject petitioner's claim that the determination is not supported by substantial evidence. The letter, which requested services from a private investigator in exchange for financial rewards, together with the testimony adduced at the hearing including petitioner's admission that he wrote the letter, provide substantial evidence of petitioner's guilt (see, Matter of Abdur-Raheem v. Mann, 85 N.Y.2d 113, 119;Matter of Ellis v. Coombe, 253 A.D.2d 945).

We also reject the contention that the misbehavior report was defective. The record demonstrates that the report was timely filed inasmuch as it was prepared on the day the investigating officer received the letter at issue (see, 7 NYCRR 251-3.1 [a];Matter of Todd v. Lacy, 256 A.D.2d 696). Absent any showing of prejudice, the fact that the misbehavior report inadvertently recited the date of petitioner's letter as January 10, 1999 rather than December 10, 1998 is unavailing. The report specified the factual basis for the charges with sufficient particularity to enable petitioner to prepare a defense and petitioner was supplied with a copy of the letter (see, Matter of Porter v. Miller, 261 A.D.2d 747; Matter of Alston v. Great Meadow Correctional Facility, 252 A.D.2d 697).

Petitioner's remaining contentions have been examined and found to be without merit or unpreserved for our review.

Crew III, Peters, Carpinello and Mugglin, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.