                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 15, 2016                   521257
________________________________

In the Matter of RALIK BAILEY,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   August 8, 2016

Before:   Peters, P.J., Garry, Rose, Devine and Mulvey, JJ.

                             __________


     Ralik Bailey, Dannemora, petitioner pro se.

      Eric T. Schneiderman, 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 respondent finding petitioner guilty of
violating certain prison disciplinary rules.

      During the course of an investigation, correction officials
discovered that petitioner was involved in a scheme to bring
drugs into the correctional facility and had used the facility
telephone system in furtherance thereof. Specifically,
petitioner communicated with an individual named Smoke to have a
package sent to another inmate and, when such package was
received at the facility, it was opened and found to contain soup
cans with marihuana secreted inside. As a result, petitioner was
charged in a misbehavior report with smuggling, conspiring to
bring drugs into the facility, violating facility package
                              -2-                521257

procedures and making three-way telephone calls. Following a
tier III disciplinary hearing, he was found guilty of the
charges. The determination was later upheld on administrative
appeal with a modified penalty, and this CPLR article 78
proceeding ensued.

      Initially, respondent concedes that that part of the
determination finding petitioner guilty of making three-way
telephone calls is not supported by substantial evidence. Upon
reviewing the record, we agree and annul that part of the
determination, as the misbehavior report based this charge upon a
purported third-party telephone call that petitioner made to an
individual named Smoke, but the investigator who prepared the
report testified that petitioner communicated directly with this
individual. We reach a different conclusion, however, with
respect to that part of the determination finding petitioner
guilty of smuggling, conspiring to bring drugs into the facility
and violating facility package procedures as the detailed
misbehavior report, related documentation, hearing testimony and
confidential information considered by the Hearing Officer in
camera provide substantial evidence of petitioner's guilt thereof
(see Matter of Adams v Fischer, 116 AD3d 1269, 1270 [2014];
Matter of Scivolette v Prack, 102 AD3d 1024, 1024 [2013]).
Nevertheless, insofar as a loss of good time was originally
imposed, the matter must be remitted to respondent for an
administrative redetermination of the penalty on the remaining
charges (see Matter of Cooper v Fischer, 89 AD3d 1336, 1337
[2011]; Matter of Osorio v Fischer, 87 AD3d 1206, 1207 [2011]).

      Contrary to petitioner's claim, the misbehavior report was
sufficiently detailed to provide him with adequate notice of the
charges to enable him to prepare a defense (see Matter of
Zimmerman v Annucci, 139 AD3d 1205, 1206 [2016]; Matter of
Cognata v Fischer, 85 AD3d 1456, 1457 [2011]). Likewise, he was
not improperly denied documentation that was confidential in
nature (see Matter of Martin v Fischer, 109 AD3d 1026, 1027
[2013]; Matter of Matthews v Fischer, 95 AD3d 1529, 1530 [2012]).
Furthermore, upon reviewing the record, we find no indication
that the Hearing Officer was biased or that the determination
flowed from any alleged bias (see Matter of Linares v Fischer,
119 AD3d 1300, 1301 [2014], lv denied 24 NY3d 909 [2014]; Matter
                              -3-                  521257

of Adams v Fischer, 116 AD3d at 1270). We have considered
petitioner's remaining contentions and find them to be
unpersuasive.

     Peters, P.J., Garry, Rose, Devine and Mulvey, JJ., concur.



      ADJUDGED that the determination is modified, without costs,
by annulling so much thereof as found petitioner guilty of making
three-way telephone calls and imposed a penalty; petition granted
to that extent, respondent is directed to expunge all references
to this charge from petitioner's institutional record and matter
remitted for an administrative redetermination of the penalty on
the remaining violations; and, as so modified, confirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
