Taylor v. Fischer
| Decision Date | 24 June 2010 |
| Citation | 906 N.Y.S.2d 112,74 A.D.3d 1677 |
| Parties | In the Matter of Ernest TAYLOR, Petitioner, v. Brian FISCHER, as Commissioner of Correctional Services, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ernest Taylor, Auburn, petitioner pro se.
Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: CARDONA, P.J., SPAIN, KAVANAGH, STEIN and EGAN JR., JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
As the result of an ongoing investigation, petitioner was charged in a misbehavior report with, as relevant here, drug possession and smuggling. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was upheld on administrative appeal, with a downward modification of the penalty assessed. Petitioner then commenced this CPLR article 78 proceeding and we confirm.
The misbehavior report, along with hearing testimony and the confidential testimony and documents reviewed by the Hearing Officer in camera, provide substantial evidence to support the determination of guilt ( see Matter of Willacy v. Fischer, 67 A.D.3d 1099, 1100, 889 N.Y.S.2d 261 [2009]; Matter of Arnold v. Fischer, 60 A.D.3d 1177, 875 N.Y.S.2d 318 [2009] ). We also reject petitioner's contention that the misbehavior report was defective because it failed to recite the dates, times and places of the alleged violations. Inasmuch as it resulted from an ongoing investigation and was based upon confidential information, we find that enough details were provided to afford petitioner the opportunity to prepare a defense ( see Matter of Willacy v. Fischer, 67 A.D.3d at 1100, 889 N.Y.S.2d 261; 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] ). As for petitioner's challenge to the sufficiency and accuracy of the hearing transcript, "there is noindication that the transcript of the hearing was deliberately altered or that significant portions are missing such as to preclude meaningful review" ( Matter of Costello v. Smith, 26 A.D.3d 566, 567, 807 N.Y.S.2d 724 [2006];see Matter of McFadden v. Venettozzi, 65 A.D.3d 1401, 1402, 885 N.Y.S.2d 377 [2009]; see also Matter of Sanders v. Haggett, 72 A.D.3d 1372, 901...
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...meaningful judicial review ( see Matter of Reese v. Bezio, 75 A.D.3d 1029, 1030, 907 N.Y.S.2d 522 [2010]; Matter of Taylor v. Fischer, 74 A.D.3d 1677, 1677–1678, 906 N.Y.S.2d 112 [2010] ). We are also satisfied, upon our review of the record, that the findings of guilt rendered against peti......
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