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Donhauser v. Prack

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 5, 2009

IN THE MATTER OF DAVID DONHAUSER, PETITIONER,
v.
ALBERT PRACK, AS ACTING 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: Cardona, P.J., Peters, Kane, Malone Jr. 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 providing false information and impersonation after he submitted two requests for law library materials, one in his name and one in his then cellmate's name. A tier III hearing ensued, at the conclusion of which the Hearing Officer found petitioner guilty and imposed a penalty. Following an unsuccessful administrative appeal, petitioner commenced this proceeding pursuant to CPLR article 78 to challenge the determination of guilt.

We confirm. The misbehavior report together with petitioner's admission that he authored and submitted two separate requests for law library materials under two different names constitute substantial evidence to support the finding of guilt (see Matter of Lebron v McGinnis, 26 AD3d 658, 658 [2006], lv denied 7 NY3d 704 [2006]). To the extent that petitioner contends that he merely was attempting to assist his cellmate, as opposed to improperly obtaining more law library materials than the relevant rules permitted, this presented a credibility determination for the Hearing Officer to resolve (see Matter of Diaz v Smith, 54 AD3d 1080, 1081 [2008]). Petitioner's remaining arguments are either unpreserved for our review or are lacking in merit.

Cardona, P.J., Peters, Kane, Malone Jr. and McCarthy, JJ., concur.

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

20090305

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