IN RE: Jerry SANDERS

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

IN RE: Jerry SANDERS, Petitioner, v. Darwin LaCLAIR, as Superintendent of Great Meadow Correctional Facility, Respondent.

Decided: November 19, 2009

Before:  MERCURE, J.P., PETERS, SPAIN, MALONE JR. and KAVANAGH, JJ. Jerry Sanders, Auburn, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Washington County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following the tape recording of several of petitioner's telephone calls during a confidential investigation, he was charged in a misbehavior report with, among other things, drug possession, smuggling and unauthorized third-party telephone calls.   At the conclusion of a tier III disciplinary hearing, petitioner was found guilty of the enumerated charges.   The determination was upheld on administrative appeal, and this CPLR article 78 proceeding ensued.

 We confirm.   The misbehavior report, unusual incident report, tape recordings of petitioner's telephone calls and testimony from the Inspector General's investigator provide substantial evidence to support the determination that petitioner conspired with his wife and others to smuggle narcotics into the correctional facility (see Matter of James v. Fischer, 57 A.D.3d 1064, 1064-1065, 867 N.Y.S.2d 710 [2008];  Matter of Gomez v. LeClaire, 53 A.D.3d 994, 995, 862 N.Y.S.2d 633 [2008];  Matter of Antinuche v. Goord, 16 A.D.3d 743, 744, 790 N.Y.S.2d 324 [2005] ).   Contrary to petitioner's contention, the fact that drugs were not brought into the facility does not negate the finding of guilt with regard to the drug possession and smuggling charges, inasmuch as the rules were violated when petitioner conspired to bring them into the facility (see 7 NYCRR 270.2[B][14][xv];  [B][15][i];  Matter of Gomez v. LeClaire, 53 A.D.3d at 995, 862 N.Y.S.2d 633;  Matter of Ware v. Hendel, 42 A.D.3d 601, 602, 838 N.Y.S.2d 272 [2007] ).

 Turning to petitioner's procedural claims, we find that the acts of misconduct were sufficiently detailed in the misbehavior report so as to afford him the opportunity to prepare a defense (see Matter of Dolan v. Goord, 41 A.D.3d 1119, 1119, 840 N.Y.S.2d 169 [2007];  Matter of Toney v. Goord, 26 A.D.3d 613, 614, 809 N.Y.S.2d 627 [2006] ).   Additionally, we find no merit in petitioner's claim that he was prejudiced by not receiving a transcript of the tapes of his telephone calls inasmuch as the tapes themselves were played during the hearing (see generally Matter of Ryan v. Goord, 12 A.D.3d 799, 800, 784 N.Y.S.2d 254 [2004];  Matter of Cintron v. Goord, 280 A.D.2d 794, 794-795, 721 N.Y.S.2d 142 [2001] ).

We have examined petitioner's remaining claims and have determined that they are without merit.

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

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