Melendez v. Goord

Sep 30, 1997
Versions:242 A.D.2d 881
662 N.Y.S.2d 334
1997 N.Y. App. Div. LEXIS 10431

Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner was found guilty following a Tier III hearing of violating inmate rules 114.10 (7 NYCRR 270.2 [B] [15] [i] [smuggling]) and 113.12 (7 NYCRR 270.2 [B] [14] [iii] [possession of a controlled substance]). The misbehavior report alleges that petitioner participated in a three-way telephone call during which he solicited a woman identified as Anastasia Melendez to purchase drugs and smuggle them into Auburn Correctional Facility. Several days after the telephone call, she was arrested outside the prison and charged with promoting prison contraband and criminal possession of a controlled substance. The determination that petitioner was guilty of smuggling is supported by substantial evidence (see, People ex rel. Vega v Smith, 66 NY2d 130, 139; Matter of Ortiz v Rourke, 241 AD2d 962). With respect to the charge of possession of a controlled substance, petitioner contends that there is no proof that he possessed a controlled substance because Anastasia was arrested before she entered the facility. The regulations provide, however, that the offenses of conspiracy, attempt, and accessory are punishable to the same degree as the actual offense involved (see, 7 NYCRR 270.3 [b]), and there is substantial evidence to support the determination that petitioner conspired or attempted to possess a controlled substance.

*882There is no merit to the contention that the misbehavior report did not provide petitioner with sufficient detail to apprise him of the facts underlying the charges (see, Matter of Bennett v LeFevre, 115 AD2d 141; Matter of McCleary v LeFevre, 98 AD2d 866). Further, contrary to petitioner’s contention, the record establishes that the hearing was commenced in a timely manner because a disciplinary hearing extension was granted by the Commissioner of the Department of Correctional Services (see, 7 NYCRR 251-5.1 [a]). We have considered the remaining contentions of petitioner and conclude that they are without merit. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Cayuga County, Corning, J.) Present—Denman, P. J., Hayes, Callahan, Doerr and Boehm, JJ.