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Peets v. Bezio

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


February 19, 2009

IN THE MATTER OF NORBERTO PEETS, PETITIONER,
v.
NORMAN BEZIO, 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: January 26, 2009

Before: Mercure, J.P., Rose, 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 Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with fighting, creating a disturbance and disobeying a direct order. Following a tier III disciplinary hearing, petitioner was found guilty and a penalty was imposed. That decision was affirmed upon petitioner's administrative appeal, prompting him to commence this proceeding pursuant to CPLR article 78 to challenge the determination of guilt.

We confirm. The detailed misbehavior report, together with the testimony of the correction officer who wrote the report, provide substantial evidence of petitioner's guilt (see Matter of Williams v Walsh, 56 AD3d 923, 923 [2008]; Matter of Ponder v Fischer, 54 AD3d 1094, 1095 [2008]). To the extent that petitioner argues that he was denied the testimony of a particular correction officer, the record reveals that such testimony was properly precluded (see Matter of Sutherland v Selsky, 56 AD3d 833, 834 [2008]; Matter of Morris v Goord, 50 AD3d 1327, 1327 [2008]). Petitioner's procedural claims, including his assertions that the Hearing Officer was biased, was improperly designated and failed to provide him with access to a translator and/or an alleged videotape of the incident, are unpreserved for our review (see Matter of Johnson v Department of Correctional Servs., 53 AD3d 746, 747 [2008]; Matter of Striplin v Selsky, 28 AD3d 969, 969 [2006]).

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

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

20090219

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