Matter of Fareedullah v. Fischer

• Decision Date: 16 July 2009
• Docket Number: 505757.
• Citation: 882 N.Y.S.2d 756,64 A.D.3d 1024,2009 NY Slip Op 05896
• Parties: In the Matter of NAWABI FAREEDULLAH, Petitioner, v. BRIAN FISCHER, as Commissioner of Correctional Services, Respondent.
• Court: New York Supreme Court — Appellate Division

64 A.D.3d 1024

882 N.Y.S.2d 756

2009 NY Slip Op 05896

In the Matter of NAWABI FAREEDULLAH, Petitioner, v. BRIAN FISCHER, as Commissioner of Correctional Services, Respondent.

505757.

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

Decided July 16, 2009.

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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

An investigation revealed that petitioner, a prison inmate, had conspired with other inmates at Arthur Kill Correctional Facility in Richmond County to gain a leadership role over the facility's Muslim community. Petitioner was found guilty after a tier III disciplinary hearing of, among other things, violating the prison disciplinary rules that prohibit making threats, attempting to create an unauthorized organization and urging other inmates to participate in a demonstration. That determination was administratively affirmed, and this CPLR article 78 proceeding ensued.

Initially, we reject petitioner's assertion that the misbehavior report was insufficient to provide him with specific dates, times and places regarding the charges (see Matter of Sheppard v Goord, 292 AD2d 694, 695-696 [2002]). Inasmuch as the charges resulted from an ongoing investigation, it was sufficient for the misbehavior report to set forth the rules determined to have been violated, the particulars of the incident giving rise to the violations and a time period during which said incidents occurred, all of which served to provide petitioner with enough particulars to make an effective response (see Matter of Abdur-Raheem v Mann, 85 NY2d 113, 123 [1995]; Matter of Lamage v Selsky, 47 AD3d 1144, 1146 [2008]; Matter of Dolan v Goord, 41 AD3d 1119, 1119-1120 [2007]; Matter of Ellis v Selsky, 29 AD3d 1254 [2006]).

We further find that respondent's determination was supported by substantial evidence. Specifically, among the evidence presented at the hearing was information from confidential informants and the misbehavior report relating that documents containing threatening statements against the civilian chaplain were discovered in petitioner's personal property as well as corroborating testimony from the civilian chaplain, the correction officers involved in the investigation and petitioner himself (see Matter of Moore v Goord, 279 AD2d 682 [2001]; Matter of Velez v...