State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: November 12, 2015 520867 

________________________________

In the Matter of JOHN SHIELDS,

Petitioner,

v MEMORANDUM AND JUDGMENT

ALBERT PRACK, as Director of

Special Housing and Inmate

Disciplinary Programs,

Respondent.

________________________________

Calendar Date: September 22, 2015

Before: Peters, P.J., McCarthy, Garry and Devine, JJ.

__________

John Shields, Beacon, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Marcus J.

Mastracco 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 Corrections and

Community Supervision finding petitioner guilty of violating a

prison disciplinary rule.

Petitioner and another inmate made arrangements to have a

third inmate receive a package on their behalf from an individual

outside the correctional facility. When the package arrived,

correction officers informed the recipient that the powdered

drink mix included in the package was not permitted in the

facility and he agreed to donate it to charity. When the drink

mix container was being processed for donation, correction

officials discovered that it had been tampered with and 15

cigarettes containing what appeared to be synthetic marihuana
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were recovered. An investigation ensued during which

confidential information was received implicating petitioner as a

participant in the plan to bring the package into the

correctional facility. As a result, he was charged in a

misbehavior report with smuggling. Petitioner was found guilty

of the charge following a tier III disciplinary hearing. The

penalty imposed was modified by correction officials and the

determination was later affirmed on administrative appeal. This

CPLR article 78 proceeding ensued.

We confirm. The detailed misbehavior report, related

documentation and testimony of the recipient of the package,

together with the confidential information considered by the

Hearing Officer in camera, provide substantial evidence

supporting the determination of guilt (see Matter of Adams v

Fischer, 116 AD3d 1269, 1270 [2014]; Matter of Stark v Bezio, 97

AD3d 913, 913 [2012]). Contrary to petitioner's claim, the

disciplinary rule prohibiting smuggling includes conspiring with

another to do so (see 7 NYCRR 270.2 [B] [15] [i]; 270.3 [b];

Matter of Welch v Fischer, 121 AD3d 1139, 1140 [2014]). 

Moreover, to the extent that petitioner denied being involved in

the smuggling scheme, this presented a credibility issue for the

Hearing Officer to resolve (see Matter of Sullivan v Fischer, 95

AD3d 1514, 1515 [2012]; Matter of Garner v Selsky, 47 AD3d 1167,

1168 [2008]). Petitioner's further claims that the Hearing

Officer failed to independently assess the reliability of the

confidential information or permit him to question the

confidential sources are unpreserved for our review due to his

failure to raise them at the hearing or in his administrative

appeal (see Matter of Jones v Prack, 114 AD3d 985, 985 [2014];

Matter of Robinson v Phillips, 285 AD2d 779, 780 [2001]). 

Petitioner's remaining contentions are unpreserved or without

merit. 

Peters, P.J., McCarthy, Garry and Devine, JJ., concur.
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ADJUDGED that the determination is confirmed, without

costs, and petition dismissed.

ENTER:

Robert D. Mayberger

Clerk of the Court