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Keesh v. Smith

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 16, 2009

IN THE MATTER OF TYHEEM YEFYA KEESH, PETITIONER,
v.
JOSEPH T. SMITH, AS SUPERINTENDENT OF SHAWANGUNK CORRECTIONAL FACILITY, 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: March 2, 2009

Before: Cardona, P.J., Spain, Lahtinen, Malone Jr. and Stein, JJ.

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Ulster County) to review two determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, an inmate, was charged in two separate misbehavior reports with violating various prison disciplinary rules. At the conclusion of respective tier II disciplinary hearings, petitioner was found guilty on March 24, 2008 of smuggling and stealing state property and on April 2, 2008 of possessing contraband. Those determinations were affirmed upon administrative appeal and this CPLR article 78 proceeding ensued.

We confirm. The misbehavior report and testimony introduced at the first hearing (see Matter of Rivera v Fisher, 57 AD3d 1063, 1064 [2008]), like the misbehavior report, documentary evidence and testimony introduced at the second hearing (see Matter of Peana v Fischer, 54 AD3d 1126, 1126-1127 [2008]), provided substantial independent evidence to support the respective determinations of guilt at each hearing. We have reviewed petitioner's procedural contentions, including his claims that both of the Hearing Officers were biased and that he was denied documentary evidence and the right to present witness testimony at the hearings, and find they lack merit.

Cardona, P.J., Spain, Lahtinen, Malone Jr. and Stein, JJ., concur.

ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.

20090416

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