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Liner v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 26, 2008

IN THE MATTER OF JOSHUA LINER, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 27, 2008

Before: Cardona, P.J., Mercure, Carpinello, Rose and Malone Jr., JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Lynch, J.), entered January 17, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating a prison disciplinary rule.

After a search of petitioner's prison cell recovered a sharpened nail, he was charged in a misbehavior report with possession of a weapon. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty as charged. That determination was administratively affirmed, prompting petitioner to commence this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition. Petitioner now appeals.

We affirm. Regarding petitioner's assertion that he was denied the employee assistance to which he was entitled, he has failed to demonstrate that he suffered any prejudice as a result of the purported inadequacies (see Matter of Burgess v Selsky, 50 AD3d 1347, 1348 [2008]). As for petitioner's claim that the Hearing Officer was biased, it is neither substantiated by the record nor is there any indication that the underlying determination of guilt flowed from any alleged bias (see Matter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]).

To the extent preserved, petitioner's remaining contentions have been examined and found to be unavailing.

Cardona, P.J., Mercure, Carpinello, Rose and Malone Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20081126

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