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Ellison v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


June 18, 2009

IN THE MATTER OF WALTER ELLISON, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: May 13, 2009

Before: Mercure, J.P., Spain, Lahtinen, Malone Jr. and Garry, JJ.

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 Commissioner of Correctional Services which found petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of using a controlled substance. After an administrative appeal, the determination was affirmed with a modified penalty. Petitioner thereafter commenced this CPLR article 78 proceeding and we confirm.

The positive urinalysis results, the misbehavior report and the hearing testimony provide substantial evidence to support the finding of petitioner's guilt (see Matter of Perretti v Fischer, 58 AD3d 999, 1000 [2009], lv denied ___ NY3d ___ [May 5, 2009]; Matter of Smith v Dubray, 58 AD3d 968, 968-969 [2009]). We also find that petitioner's request to call a civilian witness was properly denied, inasmuch as she had no direct involvement or knowledge of the charged conduct and, therefore, her testimony would not have been relevant (see Matter of Perretti v Fischer, 58 AD3d at 1001; Matter of Moss v Goord, 36 AD3d 977, 978 [2007]). Lastly, upon our review of the record, there is no evidence that the Hearing Officer was biased, that the hearing was conducted in an unfair manner or that the determination flowed from any alleged bias (see Matter of Chavis v Goord, 58 AD3d 954, 955 [2009]; Matter of Moss v Goord, 36 AD3d at 978).

We have considered petitioner's remaining contentions and find them to be either unpreserved or without merit.

Mercure, J.P., Spain, Lahtinen, Malone Jr. and Garry, JJ., concur.

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

20090618

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