IN RE: Carmelo GARCIA

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Carmelo GARCIA, Petitioner, v. Donald SELSKY, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.

Decided: February 24, 2005

Before:  CARDONA, P.J., MERCURE, CREW III, SPAIN and CARPINELLO, JJ. Carmelo Garcia, Rome, petitioner pro se. Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

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.

As the result of an investigation, correction officers discovered that petitioner was involved in a smuggling scheme under which he was selling controlled substances in the correctional facility where he was incarcerated.   The inmates who purchased the controlled substances were instructed to complete disbursement forms and send money to an outside address.   A total of $450 was sent to that address by eight different inmates.

Petitioner was charged in a misbehavior report with smuggling, conspiracy and solicitation.   He was found guilty of these charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal.   This CPLR article 78 proceeding ensued.

Contrary to petitioner's claim, the determination at issue is supported by substantial evidence consisting of the misbehavior report, hearing testimony, confidential testimony considered by the Hearing Officer in camera, as well as the confidential documentation obtained as part of the investigation (see Matter of Fernandez v. Goord, 304 A.D.2d 1005, 1005-1006, 756 N.Y.S.2d 919 [2003];  Matter of Ruiz v. Goord, 289 A.D.2d 810, 810, 735 N.Y.S.2d 434 [2001] ).   Inasmuch as the confidential information implicated matters bearing upon institutional safety, the failure to provide petitioner with access to such information was not, under the circumstances presented here, error (see e.g. Matter of Bossett v. Portuondo, 3 A.D.3d 639, 640, 769 N.Y.S.2d 913 [2004] ).

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

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