Opinion
2012-12-13
In the Matter of Francis SMYTHE, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Law Office of Thomas Terrizzi, Buffalo (Thomas Terrizzi of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Law Office of Thomas Terrizzi, Buffalo (Thomas Terrizzi of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondent.
Before: MERCURE, J.P., LAHTINEN, SPAIN, KAVANAGH and GARRY, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review four determinations of respondent which found petitioner guilty of violating certain disciplinary rules.
Petitioner, an inmate, was found guilty of violating prison disciplinary rules prohibiting extortion and solicitation based upon letters he wrote to his niece. Those letters, together with another letter that petitioner's niece wrote to him, the misbehavior report and testimony of the senior investigator from the Inspector General's office who authored the report, constitute substantial evidence supporting the determination ( see Matter of Blake v. Goord, 35 A.D.3d 1016, 1017, 825 N.Y.S.2d 326 [2006] ). The Hearing Officer made reasonable and substantial efforts to contact petitioner's witness ( see Matter of Wright v. Bezio, 64 A.D.3d 1109, 1110, 882 N.Y.S.2d 668 [2009] ) and, in any event, her testimony would not negate the content of the letters authored by petitioner, which speak for themselves. Regarding petitioner's remaining contentions, we find that the transcript, insofar as it contains the minutes of the hearing at issue, is sufficiently complete as to allow meaningful review ( see Matter of Harris v. Selsky, 15 A.D.3d 708, 708, 788 N.Y.S.2d 714 [2005] ), and petitioner was not denied access to necessary documents ( see Matter of Jimenez v. Fischer, 56 A.D.3d 924, 925, 867 N.Y.S.2d 561 [2008] ). Finally, the confidential information that petitioner claims was incorrectly included in the record was not received or considered by this Court.
ADJUDGED that the determinations are confirmed, without costs, and the petition dismissed.