IN RE: Albert ERMMARINO (2007)

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.

Petitioner challenges a determination finding him guilty of smuggling and violating package room procedures.   We confirm.   The misbehavior report with a factually specific account of the allegations written by the investigating correction officer, the transcripts of petitioner's telephone calls and petitioner's plea of guilty to the package room procedures violation provide substantial evidence supporting the determination of guilt (see Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477 [1990];  Matter of Goncalves v. Donnelly, 9 A.D.3d 721, 779 N.Y.S.2d 842 [2004] ).   Petitioner's exculpatory statements presented a credibility issue for the Hearing Officer to resolve (see Matter of Miller v. New York State Dept. of Correctional Servs., 295 A.D.2d 714, 714-715, 743 N.Y.S.2d 632 [2002] ).

Petitioner's procedural objections are unpersuasive.   A review of the misbehavior report reveals that it disclosed the relevant details with enough particularity to enable petitioner to prepare a defense (see Matter of Quintana v. Selsky, 268 A.D.2d 624, 625, 701 N.Y.S.2d 463 [2000] ).   The Hearing Officer was in a position to remedy any perceived defect in petitioner's prehearing assistance had he made a complaint when inquired as to the adequacy of his assistance.   Petitioner has failed to demonstrate that any inadequacy prejudiced his defense (see Matter of Salaam v. Goord, 8 A.D.3d 776, 777, 778 N.Y.S.2d 216 [2004];  Matter of Blackwell v. Goord, 5 A.D.3d 883, 885, 772 N.Y.S.2d 761 [2004], lv. denied 2 N.Y.3d 708, 781 N.Y.S.2d 289, 814 N.E.2d 461 [2004] ).   There is no merit to petitioner's claim that he was improperly denied the right to call witnesses as he affirmatively advised the Hearing Officer that he did not wish to call any witnesses (see Matter of Johnson v. Goord, 33 A.D.3d 1173, 822 N.Y.S.2d 822 [2006] ).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.