At page 1170 Finding guilt based on inference of drug conspiracy3 citing casesary hearing, from which petitioner was removed for disruptive behavior, petitioner was found guilty as charged. That determination was affirmed upon…
- Minton v. Fischer, 73 A.D.3d 1347 (N.Y. App. Div. 3d Dep't 2010).publishedAs to the drug possession charge, the misbehavior report, testimony of the investigator who authored it and the transcripts of the recorded telephone conversations provide substantial evidence that petitioner was involved in a conspiracy t…
- Monroe v. Fischer, 73 A.D.3d 1304 (N.Y. App. Div. 3d Dep't 2010).publishedThe fact that neither petitioner nor his wife were actually found to be in possession of drugs does not obviate the finding of guilt with respect to charges of conspiring to possess drugs or smuggling (see Matter of Florentino v Washburn,…
- Thacker v. Fischer, 68 A.D.3d 1310 (N.Y. App. Div. 3d Dep't 2009).publishedFinally, there is no merit to petitioner’s contention that the smuggling charge cannot be sustained because neither he nor his girlfriend were found with drugs, inasmuch as an attempt or conspiracy to violate an institutional rule is punis…
v.
Kathleen A. Washburn, as Senior Mail Clerk of Southport Correctional Facility
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.
Petitioner was charged in a misbehavior report with drug possession after it was determined that he had solicited his mother to bring him drugs during a visit. Following a tier III disciplin[*1170]ary hearing, from which petitioner was removed for disruptive behavior, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal, although the penalty imposed was reduced. This CPLR article 78 proceeding ensued.
Initially, inasmuch as “[ijnmates involved in attempts or conspiracies to violate institutional rules of conduct . . . will be punishable to the same degree as violators of such rules” (7 NYCRR 270.3 [b]), we are unpersuaded by petitioner’s contention that the drug possession charge cannot be sustained because no drugs were found on him or his mother at the time of the visit. Turning to the merits, the misbehavior report, the testimony of the Inspector General Investigator who authored it, and petitioner’s letter to his mother, in which it can be reasonably inferred that petitioner requested his mother to bring him drugs on her next visit, provide substantial evidence to support the determination of guilt (see Matter of McGoey v Selsky, 260 AD2d 814 [1999]; Matter of Rodriguez v Goord, 251 AD2d 737, 737 [1998]).
To the extent they are preserved, petitioner’s remaining contentions, including his claim that he was improperly removed from the hearing, have been reviewed and determined to be without merit.
Cardona, P.J., Mercure, Peters, Spain and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.