Majority
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 which found petitioner guilty of violating a prison disciplinary rule.
After petitioner, a prison inmate, was observed making several exchanges between his mouth and anus while using the inmate bathroom in the visiting room, he was served with a misbehavior report charging him with, as relevant here, smuggling. Petitioner was found guilty of this charge following a tier III disciplinary hearing, and that determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, along with the testimony of the correction officer who witnessed petitioner’s actions and authored the report, provide substantial evidence to support the determination of guilt, despite the fact that the item alleged to have been smuggled was never found (see Matter of Vargas v
Cardona, P.J., Mercure, Rose, Garry and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
Cases cited
- Vargas v. Selsky 69 AD3d 1078 at 1078 p. 743
- Spulka v. Goord 12 AD3d 1004 at 1005 p. 743
- Roman v. Goord 11 AD3d 858 at 859 p. 743
- Smiton v. New York State Department of Correctional Services 70 AD3d 1148 at 1149 p. 743
- Dixon v. Brown 62 AD3d 1223 at 1224 p. 743