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Mobley v. Dubray

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 4, 2008

IN THE MATTER OF COREY MOBLEY, PETITIONER,
v.
KEITH DUBRAY, AS DIRECTOR OF SPECIAL HOUSING AND INMATE DISCIPLINARY PROGRAMS, 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., Spain, Carpinello, Kane and Malone Jr., JJ.

MEMORANDUM AND JUDGMENT

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 Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

A frisk search of petitioner recovered an 81/4-inch sharpened metal rod in his right sneaker. As a result, petitioner was charged in a misbehavior report with smuggling and possession of a weapon. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was administratively affirmed, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.

We confirm. To the extent that petitioner challenges the determination of guilt on an evidentiary basis, the misbehavior report, together with the corroborating hearing testimony from the correction officer who found the weapon and authored the report, provide substantial evidence to support the determination (see Matter of Harvey v Woods, 53 AD3d 988, 988 [2008]). Regarding petitioner's claim of hearing officer bias, it is neither substantiated by the record nor is there any indication that the determination flowed from any purported bias (see Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]). Petitioner's assertion that he was denied documentary and photographic evidence has been examined and found to be unavailing.

Cardona, P.J., Spain, Carpinello, Kane and Malone Jr., JJ., concur.

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

20081204

© 1992-2008 VersusLaw Inc.



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