Opinion
2011-11-23
In the Matter of Raphael THOMPSON, Petitioner, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent.
Raphael Thompson, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Raphael Thompson, Pine City, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.
Before: MERCURE, J.P., ROSE, LAHTINEN, STEIN and EGAN, JR., JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
After petitioner was observed acting furtively in the prison visiting room, he was placed on contraband watch. Thereafter, a black plastic handcuff key was found in petitioner's feces, a razor-type blade was found secreted in his mouth and tobacco and marihuana, among other things, were found hidden in his rectum. As a result, petitioner was charged in four misbehavior reports with possession of escape paraphernalia, possession of a weapon, possession of drugs, violation of visiting procedures, two counts of possession of contraband and three counts of smuggling. Following a tier III disciplinary hearing, he was found guilty of all charges and that determination was affirmed upon administrative appeal. Petitioner thereafter commenced this CPLR article 78 proceeding.
We confirm. The misbehavior reports, extensive supporting documentation and positive drug test results provide substantial evidence to support the determination of guilt with regard to all of the charges ( see Matter of Evans v. Bezio, 84 A.D.3d 1622, 1622–1623, 922 N.Y.S.2d 828 [2011]; Matter of Hughes v. Bezio, 84 A.D.3d 1598, 1598, 924 N.Y.S.2d 298 [2011] ). Petitioner's insistence that he had been set up presented a credibility question to be resolved by the Hearing Officer ( see Matter of Cody v. Fischer, 84 A.D.3d 1651, 1651, 923 N.Y.S.2d 910 [2011]; Matter of Mills v. Fischer, 65 A.D.3d 1427, 1427, 885 N.Y.S.2d 435 [2009] ).
Turning to petitioner's procedural contentions, we find that he was properly denied the right to call a witness to testify regarding whether his visit had been terminated, as such testimony would have been irrelevant to the charges of which he was found guilty ( see Matter of Harvey v. Bradt, 81 A.D.3d 1003, 1004, 921 N.Y.S.2d 335 [2011]; Matter of Tafari v. Fischer, 78 A.D.3d 1405, 1406–1407, 913 N.Y.S.2d 777 [2010], lv. denied 16 N.Y.3d 704, 2011 WL 501326 [2011] ). Further, our review of the record reveals no hearing officer bias but, rather, that the determination was the result of the evidence presented ( see Matter of Montgomery v. Fischer, 84 A.D.3d 1666, 1667, 923 N.Y.S.2d 918 [2011] ).
Finally, we find no merit to petitioner's contention that the suspension of visitation assessed is contrary to that permitted by regulation ( see 7 NYCRR 200.5[c], [f] ). Nor do we find, in light of the number and seriousness of the violations of which petitioner was found guilty, that the penalty imposed was “ ‘so shocking to one's sense of fairness as to be excessive’ ” ( Matter of Faublas v. Rock, 85 A.D.3d 1519, 1520, 925 N.Y.S.2d 923 [2011], quoting Matter of Smiton v. New York State Dept. of Correctional Servs., 70 A.D.3d 1148, 1150, 894 N.Y.S.2d 567 [2010] ). Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.