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Smith v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 19, 2009

IN THE MATTER OF JULIO ISLEY SMITH, 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, Malone Jr., Kavanagh and Stein, 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 three separate misbehavior reports with violating various prison disciplinary rules. At the conclusion of the tier III disciplinary hearing that followed, the Hearing Officer found petitioner guilty of all but one of the charges and imposed a penalty. Petitioner's administrative appeal proved unsuccessful, prompting him to commence this CPLR article 78 proceeding challenging the determination of guilt.

To the extent that petitioner raises a substantial evidence claim, we find that the misbehavior reports and petitioner's admissions constitute substantial evidence of petitioner's guilt (see Matter of Tinnirello v Selsky, 51 AD3d 1238, 1239 [2008]; Matter of Mariani v Selsky, 47 AD3d 1146, 1146-1147 [2008]). Although petitioner contends that the misbehavior reports were issued in retaliation for complaints he had filed against correction officials, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Belot v Selsky, 56 AD3d 911 [2008]; Matter of Salahuddin v Goord, 49 AD3d 1107 [2008], lv denied 10 NY3d 717 [2008]). Finally, petitioner's claim that the Hearing Officer admitted that he authored the disposition prior to the commencement of the hearing is both belied by the record and meritless. A review of the hearing transcript fails to disclose any evidence of bias or that the determination flowed from any alleged bias (see Matter of Harvey v Woods, 56 AD3d 829 [2008]; Matter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]).

Cardona, P.J., Peters, Malone Jr., Kavanagh and Stein, JJ., concur.

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

20090319

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