Monko v. Selsky

—Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was found guilty of violating prison disciplinary rules prohibiting possession of altered items and paraphernalia giving reasonable grounds to believe that escape is planned after a 1½-inch piece of plastic eating utensil with a staple melted into one end was discovered in petitioner’s cell. Finding that the determination is supported by substantial evidence, we confirm. Initially, the deficiencies in the hearing transcript do not preclude a meaningful review of the proceedings as they relate to petitioner’s arguments (see, Matter of Fletcher v Selsky, 199 AD2d 865, 866, lv denied 83 NY2d 753). The record reveals that petitioner admitted to fabricating the item found in his cell for the purpose of opening handcuffs. That admission, along with the detailed misbehavior report, the testimony of the correction officer who conducted the search of petitioner’s cell and evidence of petitioner’s two previous escape attempts, support the findings of guilt (see, Matter of Tavarez v Goord, 237 AD2d 837). In view of the serious nature of the charges, the penalty imposed (36 months in special housing, with a corresponding loss of good behavior time and privileges) was neither harsh nor excessive (see, id.)

Mercure, J. P., Crew III, Casey, Yesawich Jr. and Spain, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.