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Batts v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 5, 2009

IN THE MATTER OF JAVARES BATTS, 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: Mercure, J.P., Rose, 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 respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rules that prohibit smuggling and possession of a controlled substance after a search of his cell disclosed a green leafy substance that later tested positive for marihuana. Following a tier III disciplinary hearing, petitioner was found guilty and a penalty was imposed. Petitioner's administrative appeal was unsuccessful, prompting him to commence this proceeding pursuant to CPLR article 78 to challenge respondent's determination.

The misbehavior report, together with the contraband receipt and the hearing testimony, constitute substantial evidence of petitioner's guilt (see Matter of Pulliam v Goord, 45 AD3d 1158, 1158 [2007]; Matter of Rios v Selsky, 32 AD3d 632, 633 [2006]). To the extent that petitioner contended that the drugs were not his and had been planted by facility personnel, his assertions presented a credibility issue for the Hearing Officer to resolve (see Matter of Yancey v Conway, 46 AD3d 1042, 1042 [2007]; Matter of Diaz v Goord, 26 AD3d 561, 562 [2006]). In light of the hearing testimony and contraband receipt, which established that the cell was searched and free of contraband prior to petitioner's entry, the failure to record the search in the relevant log book does not warrant annulment (see Matter of Chapman v Goord, 49 AD3d 944, 945 [2008]). Petitioner's remaining contentions, including his assertion that his administrative appeal was not decided in a timely fashion, have been examined and found to be lacking in merit.

Mercure, J.P., Rose, Kane, Malone Jr. and McCarthy, JJ., concur.

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

20090305

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