Florentino v. Washburn

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule. Petitioner was charged in a misbehavior report with drug possession after it was determined that he had solicited his mother to bring him drugs during a visit. Following a tier III disciplin [1170] ary hearing, from which petitioner was removed for disruptive behavior, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal, although the penalty imposed was reduced. This CPLR article 78 proceeding ensued. Initially, inasmuch as “[ijnmates involved in attempts or conspiracies to violate institutional rules of conduct . . . will be punishable to the same degree as violators of such rules” (7 NYCRR 270.3 [b]), we are unpersuaded by petitioner’s contention that the drug possession charge cannot be sustained because no drugs were found on him or his mother at the time of the visit. Turning to the merits, the misbehavior report, the testimony of the Inspector General Investigator who authored it, and petitioner’s letter to his mother, in which it can be reasonably inferred that petitioner requested his mother to bring him drugs on her next visit, provide substantial evidence to support the determination of guilt (see Matter of McGoey v Selsky, 260 AD2d 814 [1999]; Matter of Rodriguez v Goord, 251 AD2d 737, 737 [1998]). To the extent they are preserved, petitioner’s remaining contentions, including his claim that he was improperly removed from the hearing, have been reviewed and determined to be without merit. Cardona, P.J., Mercure, Peters, Spain and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.