Fleming v. Goord

Apr 20, 2006
Versions:28 A.D.3d 972
812 N.Y.S.2d 721

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.

As a result of an investigation during which petitioner‘s telephone calls were monitored, correction officers discovered that petitioner had made arrangements to have a visitor bring drugs into the correctional facility where he was incarcerated. When the visitor arrived at the facility, he was arrested and charged with conspiracy to promote prison contraband in the fifth degree. While in custody, he indicated that petitioner had requested him to bring drugs into the facility. Petitioner was charged in a misbehavior report with smuggling and conspiring to introduce controlled substances into the facility. After the initial determination finding him guilty of the charges was administratively reversed, a rehearing was ordered and another tier III disciplinary hearing was conducted. Petitioner was again found guilty of the charges and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report, transcribed telephone conversations, the visitor‘s incriminating statement and the investigator‘s testimony, together with the reasonable inferences to be drawn therefrom, support the determination of guilt (see Matter of Antinuche v Goord, 16 AD3d 743, 744 [2005]). Petitioner‘s claim that the administrative reversal of the first determination has res judicata effect with respect to the determination at issue, thereby precluding the rehearing, was not raised at the hearing or in petitioner‘s administrative appeal and is not preserved for our review (see Matter of Ramos v Goord, 309 AD2d 1096, 1097 [2003]; see generally Matter of Huggins v Goord, 19 AD3d 989 [2005]). His remaining contentions have been considered and found to be without merit.

Cardona, P.J., Mercure, Spain, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.