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James v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


January 15, 2009

IN THE MATTER OF WAYNE C. JAMES, 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: November 24, 2008

Before: Mercure, J.P., Peters, Spain, Rose 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 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 harassment, refusing a direct order and lewd conduct. That determination was administratively affirmed and this CPLR article 78 proceeding ensued.

We confirm. Substantial evidence in the form of the misbehavior report and testimony adduced at the hearing support the determination of guilt (see Matter of Rodriguez v Selsky, 50 AD3d 1337, 1337 [2008]). Petitioner's denial of the allegations and claims of inconsistencies in the evidence presented credibility issues for the Hearing Officer to resolve (see Matter of James v Poole, 52 AD3d 1083, 1084 [2008]). To the extent preserved, petitioner's remaining contentions, including his assertion that he was denied a fair and impartial hearing, have been examined and we discern no basis upon which to disturb the determination.

Mercure, J.P., Peters, Spain, Rose and Malone Jr., JJ., concur.

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

20090115

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