| Matter of Ermmarino v New York State Dept. of Correctional Servs. |
| 2007 NY Slip Op 06309 [43 AD3d 517] |
| August 2, 2007 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Albert Ermmarino, Petitioner, v New York State Department of Correctional Services, Respondent. |
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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 Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner challenges a determination finding him guilty of smuggling and violating package room procedures. We confirm. The misbehavior report with a factually specific account of the allegations written by the investigating correction officer, the transcripts of petitioner's telephone calls and petitioner's plea of guilty to the package room procedures violation provide substantial evidence supporting the determination of guilt (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Goncalves v Donnelly, 9 AD3d 721 [2004]). Petitioner's exculpatory statements presented a credibility issue for the Hearing Officer to resolve (see Matter of Miller v New York State Dept. of Correctional Servs., 295 AD2d 714, 714-715 [2002]).
Petitioner's procedural objections are unpersuasive. A review of the misbehavior report reveals that it disclosed the relevant details with enough particularity to enable petitioner to prepare a defense (see Matter of Quintana v Selsky, 268 AD2d 624, 625 [2000]). The Hearing Officer was in a position to remedy any perceived defect in petitioner's prehearing assistance had he made a complaint when inquired as to the adequacy of his assistance. Petitioner has failed to [*2]demonstrate that any inadequacy prejudiced his defense (see Matter of Salaam v Goord, 8 AD3d 776, 777 [2004]; Matter of Blackwell v Goord, 5 AD3d 883, 885 [2004], lv denied 2 NY3d 708 [2004]). There is no merit to petitioner's claim that he was improperly denied the right to call witnesses as he affirmatively advised the Hearing Officer that he did not wish to call any witnesses (see Matter of Johnson v Goord, 33 AD3d 1173 [2006]).
Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.