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Peralta v. Fischer

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


June 18, 2009

IN THE MATTER OF DOMINGO PERALTA, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 13, 2009

Before: Cardona, P.J., Spain, Rose, Kane and Stein, 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 which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with the destruction of, and tampering with, state property. A tier III disciplinary hearing ensued, at the conclusion of which the Hearing Officer found petitioner guilty of tampering and imposed a penalty. Following an unsuccessful administrative appeal, petitioner commenced this proceeding pursuant to CPLR article 78 to challenge the determination of guilt.

The misbehavior report, along with the testimony from the correction officer who authored the report and petitioner's admission that he was adjusting a metal piece on a fence, constitute substantial evidence to support the determination of guilt (see Matter of Wade v Artus, 59 AD3d 793, 794 [2009], appeal dismissed ___ NY3d ___ [June 9, 2009]; Matter of Hodge v Selsky, 53 AD3d 953, 954 [2008]). Furthermore, nothing in the record indicates that the Hearing Officer was biased or that his determination was the result of any purported bias (see Matter of Randolph v Napoli, 56 AD3d 832, 833 [2008]; Matter of Jenkins v Selsky, 51 AD3d 1239, 1240 [2008]).

Cardona, P.J., Spain, Rose, Kane and Stein, JJ., concur.

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

20090618

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