Patterson v. Coombe

Feb 6, 1997
Versions:236 A.D.2d 682
653 N.Y.S.2d 723
1997 N.Y. App. Div. LEXIS 1087
Carpinello, J.

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

Petitioner, a prison inmate, was found guilty after a disciplinary hearing of exchanging a controlled substance and smuggling a controlled substance into a correctional facility. He challenges this determination arguing, inter alia, that the misbehavior report was not sufficiently specific to apprise him of the charges and was not served upon him in a timely manner. He further contends that the administrative determination is not supported by substantial evidence.

Initially, inasmuch as petitioner did not challenge the specificity or timeliness of the misbehavior report at the disciplinary hearing, he has not preserved these claims for review (see, Matter of McMillan v Selsky, 221 AD2d 785; Matter of Ramos v Coughlin, 200 AD2d 846; Matter of Williams v Coughlin, 191 AD2d 937, lv denied 82 NY2d 651). As to petitioner’s claim that the administrative determination is not supported by substantial evidence, we find this claim to be without merit. Petitioner testified that he arranged for his girlfriend to sell cocaine to the friend of another inmate. Although he denied having the cocaine smuggled into the cor*683rectional facility, the correction officer who prepared the misbehavior report stated that he overheard a telephone conversation in which petitioner made such arrangements. This testimony, together with the confidential testimony considered by the Hearing Officer, provide substantial evidence supporting the administrative determination (see, Matter of Islar v Coombe, 226 AD2d 851; Matter of Harrison v Selsky, 222 AD2d 914, appeal dismissed 87 NY2d 1054; Matter of Rogers v Coughlin, 191 AD2d 1001). We have considered petitioner’s remaining contentions and find them to be without merit.

Mikoll, J. P., Crew III, Yesawich Jr. and Spain, JJ., concur. . Adjudged that the determination is confirmed, without costs, and petition dismissed.