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Arnold v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 12, 2009

IN THE MATTER OF MILTON ARNOLD, 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., Peters, Rose, Kane and Malone Jr., 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.

After an investigation indicated that petitioner slashed another inmate's face, petitioner was charged in a misbehavior report with assault and violent conduct. A tier III disciplinary hearing ensued, at the conclusion of which petitioner was found guilty of both charges. That determination was administratively affirmed, prompting petitioner to commence this CPLR article 78 proceeding seeking annulment.

We confirm. Respondent's determination is supported by substantial evidence in the record, including the misbehavior report and confidential testimony and information (see Matter of Gallo v Fischer, 50 AD3d 1374, 1374 [2008]). Contrary to petitioner's assertion, the misbehavior report was sufficiently detailed such that petitioner had notice of the charges against him and was able to prepare a defense (see Matter of Nova v Selsky, 54 AD3d 453, 454 [2008]). Petitioner's contention that the Hearing Officer was biased is neither substantiated by the record nor is there any indication that the determination of guilt flowed from any purported bias (see Matter of Randolph v Napoli, 56 AD3d 832, 833 [2008]).

We have examined petitioner's remaining arguments, including his claim that the Hearing Officer failed to appropriately assess the credibility of the confidential information, and find them to be unavailing.

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

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

20090312

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