Opinion
2012-08-2
In the Matter of Jimmy SMITH, Petitioner, v. Albert PRACK, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
Jimmy Smith, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.
Jimmy Smith, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.
Before: ROSE, J.P., LAHTINEN, KAVANAGH, GARRY 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.
Correction officials discovered two hardback razors sent through the mail to petitioner at the correctional facility where he was incarcerated as well as a letter revealing that petitioner had requested such items be sent to him. As a result, he was charged in a misbehavior report with conspiring to possess a weapon, smuggling and violating facility correspondence procedures. Shortly thereafter, petitioner's cell was searched and correction officials found a letter containing gang-related references. Consequently, petitioner was charged in a second misbehavior report with possessing gang-related material. Following a tier III disciplinary hearing on the charges contained in both reports, petitioner was found guilty of all of the charges except for violating facility correspondence procedures. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.
We confirm. That part of the determination finding petitioner guilty of conspiring to possess a weapon and smuggling is supported by substantial evidence consisting of the first misbehavior report and related documentation, together with the testimony of the mail room clerk who discovered the razor blades and letter ( see Matter of Dozier v. Selsky, 54 A.D.3d 1074, 1075, 864 N.Y.S.2d 188 [2008];Matter of Dexter v. Goord, 43 A.D.3d 516, 517, 840 N.Y.S.2d 232 [2007] ). Likewise, the second misbehavior report and related documentation, together with the testimony of the correction captain experienced in deciphering gang-related references, provides substantial evidence supporting that part of the determination finding petitioner guilty of possessing gang-related material ( see Matter of Cornwall v. Fischer, 72 A.D.3d 1364, 1365, 901 N.Y.S.2d 386 [2010];Matter of Jenkins v. Goord, 30 A.D.3d 719, 720, 815 N.Y.S.2d 491 [2006] ). Petitioner's claim of inadequate assistance is not substantiated by the record nor is there any indication that he suffered from any prejudice ( see Matter of Boley v. Selsky, 50 A.D.3d 1411, 1412, 857 N.Y.S.2d 288 [2008];Matter of Nieves v. Selsky, 263 A.D.2d 795, 796, 694 N.Y.S.2d 796 [1999] ). Finally, there is nothing in the record to suggest that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of James v. Bezio, 94 A.D.3d 1312, 1313, 942 N.Y.S.2d 685 [2012];Matter of Parra v. Fischer, 76 A.D.3d 724, 725, 907 N.Y.S.2d 345 [2010],lv. denied15 N.Y.3d 714, 2010 WL 4823841 [2010] ). Therefore, we find no reason to disturb the determination of guilt.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.