                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 17, 2015                   520261
________________________________

In the Matter of PATRICK SIMS,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision, et al.,
                    Respondents.
________________________________


Calendar Date:   August 10, 2015

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

                             __________


     Patrick Sims, Romulus, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang of counsel), for respondents.

                             __________


      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 Commissioner of Corrections
and Community Supervision which found petitioner guilty of
violating certain prison disciplinary rules.

      Through the course of an investigation, correction
officials discovered that petitioner had a telephone conversation
with his wife that included a third party and that, during the
conversation, he directed her to bring drugs into the
correctional facility where he was incarcerated. When she came
to visit him, she surrendered the drugs that were in her
possession to one of the investigators and indicated that she had
brought drugs into the facility on a prior occasion. Petitioner
was subsequently charged in a misbehavior report with conspiring
                              -2-                520261

to bring drugs into the facility, soliciting another to smuggle
drugs into the facility and engaging in a three-way telephone
call. He was found guilty of the charges following a tier III
disciplinary hearing and the determination was later affirmed on
administrative appeal with a modified penalty. This CPLR article
78 proceeding ensued.

      We confirm. The misbehavior report and related
documentation, including the transcript of the three-way
telephone call and the hearing testimony, provide substantial
evidence supporting the determination of guilt (see Matter of
Booker v Fischer, 102 AD3d 1045, 1046 [2013]). There is no merit
to petitioner's claim that the hearing was not completed in a
timely manner given that appropriate extensions were obtained and
the hearing was completed within the time frame allowed (see
Matter of McFadden v Prack, 120 AD3d 853, 855 [2014], lv
dismissed 24 NY3d 930 [2014], lv denied, 24 NY3d 908 [2014];
Matter of De La Cruz v Bezio, 107 AD3d 1275, 1276 [2013]).
Furthermore, we do not find that petitioner was improperly denied
the right to have his wife, who had criminal charges pending
against her, testify at the hearing inasmuch as the Hearing
Officer made efforts to locate her and have her testify from
jail, but personally ascertained from speaking with a sergeant at
the jail that she refused and had invoked her right to counsel
(see Matter of Lee v Goord, 36 AD3d 1176, 1177 [2007]; see also
Matter of Jimenez v Goord, 264 AD2d 918, 918 [1999]). We have
considered petitioner's remaining arguments and find that they
are either unpreserved for our review or are lacking in merit.

     McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
                              -3-                  520261

      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
