Smart v. N.Y. State Dept. of Corr. Serv.

• Decision Date: 29 July 2010
• Citation: 907 N.Y.S.2d 526,75 A.D.3d 1017
• Parties: In the Matter of Deshawn SMART, Petitioner, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 526
75 A.D.3d 1017

In the Matter of Deshawn SMART, Petitioner,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.

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

July 29, 2010.

907 N.Y.S.2d 526

Deshawn Smart, Comstock, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondent.

Before: CARDONA, P.J., SPAIN, ROSE, MALONE JR. and McCARTHY, JJ.

75 A.D.3d 1017

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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

During the course of an investigation, correction officials obtained information that petitioner conspired with his wife to bring drugs into the correctional facility during visitation. As a result, he was charged in a misbehavior report with smuggling, conspiring to possess drugs, violating facility visitation procedures and violating facility correspondence procedures. Petitioner was found guilty of these charges at the conclusion of a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

907 N.Y.S.2d 527

We confirm. The misbehavior report, together with the

75 A.D.3d 1018

testimony of the investigator who prepared it, as well as the documentary evidence, provide substantial evidence supporting the determination of guilt ( see Matter of Nelson v. Fischer, 73 A.D.3d 1365, 1366, 900 N.Y.S.2d 692 [2010]; Matter of Cruz v. Goord, 41 A.D.3d 1122, 1122-1123, 840 N.Y.S.2d 171 [2007]; Matter of Horton v. Allard, 25 A.D.3d 1048, 1049, 810 N.Y.S.2d 226 [2006] ). The misbehavior report was prepared as the result of an ongoing investigation and, contrary to petitioner's claim, was sufficiently specific to enable him to prepare an adequate defense ( see Matter of Powell v. Goord, 34 A.D.3d 876, 877, 823 N.Y.S.2d 579 [2006]; Matter of Jackson v. Smith, 13 A.D.3d 685, 685-686, 785 N.Y.S.2d 603 [2004], lv. denied 4 N.Y.3d 707, 795 N.Y.S.2d 517, 828 N.E.2d 620 [2005] ). Furthermore, our review of the record does not reveal that the Hearing Officer was biased or that the determination flowed from any alleged bias ( see Matter of Caldwell v. Fischer, 67 A.D.3d 1176, 1177, 887 N.Y.S.2d 881 [2009]; Matter of Martino v. Goord, 38 A.D.3d 958, 959, 832 N.Y.S.2d 303 [2007] ). Petitioner's...