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Jackson v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 19, 2009

IN THE MATTER OF CARL JACKSON, 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: January 26, 2009

Before: Cardona, P.J., Mercure, Kavanagh, Stein and McCarthy, JJ.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging a tier III disciplinary determination finding him guilty of solicitation and harassment. We now confirm.

The determination of guilt is supported by substantial evidence including the misbehavior report, subject correspondence, handwriting samples and testimony adduced at the hearing (see Matter of Koehl v Fischer, 52 AD3d 1070, 1071 [2008], appeal dismissed 11 NY3d 809 [2008]). Petitioner's assertion that the misbehavior report was fabricated as a means of retaliation for his past filing of grievances created a credibility issue for resolution by the Hearing Officer (see Matter of Ryan v Goord, 12 AD3d 799, 799 [2004]). Given petitioner's continued disruptive behavior during the hearing despite the Hearing Officer's repeated warnings to stop, we cannot conclude that petitioner was improperly removed from the remainder of the hearing (see Matter of Chavis v Goord, 43 AD3d 1235, 1235-1236 [2007]). Finally, petitioner's assertion that the Hearing Officer was biased is not supported by the record; nor is there any indication that the determination at hand flowed from any purported bias (see Matter of Randolph v Napoli, 56 AD3d 832, 833 [2008]).

We have examined petitioner's remaining contentions and, to the extent preserved, find them to be unavailing.

Cardona, P.J., Mercure, Kavanagh, Stein and McCarthy, JJ., concur.

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

20090219

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