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Wilson v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


January 15, 2009

IN THE MATTER OF EVERETTE WILSON, 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: Cardona, P.J., Peters, Spain, Kane and Stein, 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.

During an investigation, confidential sources revealed that petitioner had been soliciting inmates for sexual favors and had threatened at least one inmate with physical violence to coerce him to comply with petitioner's demands. As a result, petitioner was charged in a misbehavior report with making threats, engaging in violent conduct, engaging in lewd conduct and soliciting a sexual act. Following a tier III disciplinary hearing, he was found guilty of all charges, except for engaging in lewd conduct. The determination was affirmed on administrative appeal, resulting in this CPLR article 78 proceeding.

We confirm. Substantial evidence, consisting of the misbehavior report and the confidential testimony considered by the Hearing Officer in camera, supports the determination of guilt (see Matter of Rincon v Selsky, 28 AD3d 565, 565 [2006]; Matter of Reese v Goord, 249 AD2d 639, 639 [1998], lv denied 92 NY2d 808 [1998]). Contrary to petitioner's claim, the misbehavior report was sufficiently detailed with respect to the time of the occurrences to enable him to prepare an adequate defense (see Matter of Blake v Goord, 35 AD3d 1016, 1017 [2006]; Matter of Toney v Goord, 26 AD3d 613, 614 [2000]; Matter of Jackson v Smith, 13 AD3d 685, 685 [2004], lv denied 4 NY3d 707 [2005]). In this regard, we note that the Hearing Officer also advised petitioner of the date and time that the investigation concluded, which was the same date that the report was prepared. Moreover, absent an indication in the record that petitioner was denied witnesses, there is no merit to his claim that he was improperly denied witness denial forms. Petitioner's remaining contentions have not been preserved for our review given his failure to raise them at the disciplinary hearing or in his administrative appeal.

Cardona, P.J., Peters, Spain, Kane and Stein, JJ., concur.

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

20090115

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