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Rivera v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


December 4, 2008

IN THE MATTER OF ROBERT RIVERA, PETITIONER,
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: Peters, J.P., Spain, Carpinello, Malone Jr. and Kavanagh, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was found guilty following a tier III disciplinary hearing of making threats, refusing a direct order and interfering with an employee. The administrative affirmance of that determination prompted petitioner to commence this CPLR article 78 proceeding seeking annulment.

As an initial matter, we note that, contrary to petitioner's assertion, Supreme Court properly transferred the proceeding to this Court inasmuch as the petition raises a question of substantial evidence (see Matter of Rodriguez v Goord, 40 AD3d 1324, 1325 [2007]). Turning to the merits, the misbehavior report, together with the testimony adduced at the hearing, provide substantial evidence to support the determination of guilt (see Matter of Wigfall v Goord, 53 AD3d 943, 943 [2008]). As for petitioner's denial of the allegations against him, a credibility issue was created for resolution by the Hearing Officer (see Matter of Jordan v Fischer, 53 AD3d 1013, 1013 [2008]). To the extent preserved, petitioner's remaining contentions, including his claim that he was denied a fair and impartial hearing, have been examined and found to be unavailing.

Peters, J.P., Spain, Carpinello, Malone Jr. and Kavanagh, JJ., concur.

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

20081204

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