Rosario v. Selsky

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 a prison disciplinary rule.

Petitioner, a prison inmate, was found guilty of violating the prison disciplinary rule which prohibits drug possession after a strip frisk of petitioner and a subsequent search of his cell revealed 44 packets of heroin and a small quantity of marihuana. The determination of guilt was affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. Initially, we reject petitioner’s assertion that the determination must be annulled due to minor technical discrepancies between the misbehavior report and the unusual *657incident report inasmuch as the misbehavior report was sufficiently detailed to provide notice of the charges and to enable petitioner to prepare a defense (see, Matter of Alvarado v Goord, 252 AD2d 650). Also unavailing is petitioner’s contention that his disciplinary hearing was not conducted in a timely manner. The record reveals that the hearing was timely commenced and continued pursuant to a valid extension granted for the purpose of recreating testimony from damaged tape recordings (see, 7 NYCRR 251-5.1 [a]; see also, Matter of Feliciano v Selsky, 239 AD2d 799). Moreover, the record discloses that petitioner received adequate employee assistance and was provided with all of the requested documents that were available and relevant to his defense (see, Matter of Shabazz v Selsky, 256 AD2d 815, lv denied 93 NY2d 815; Matter of Hein v Goord, 249 AD2d 661).

Finally, we find that the detailed misbehavior report indicating that field tests performed on the substances yielded positive results for heroin and marihuana was sufficiently probative to constitute substantial evidence of petitioner’s guilt (see, Matter of Falero v Goord, 253 AD2d 913; Matter of Howell v Goord, 251 AD2d 910).

Petitioner’s remaining contentions, including his claim of Hearing Officer bias, have been examined and found to be lacking in merit.

Mikoll, J. P., Crew III, Spain and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.