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Villafane v. Fischer

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


June 18, 2009

IN THE MATTER OF ANTHONY VILLAFANE, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 13, 2009

Before: Mercure, J.P., Peters, Rose, Malone Jr. and McCarthy, 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, a prison inmate, worked as a book runner in the law library assisting inmates in obtaining documents, as well as providing typing services. While petitioner was performing his duties, a correction officer checked his delivery bag and found grievance materials that petitioner should not have had in his possession. Petitioner told the officer that another inmate had asked him to type these materials. As a result of this incident, petitioner was charged in a misbehavior report with smuggling, lying and possessing grievance documents pertaining to another inmate. He was found guilty of the charges following a tier III disciplinary hearing, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony presented at the hearing, provide substantial evidence supporting the determination of guilt (see Matter of Williams v Walsh, 56 AD3d 923, 923 [2008]; Matter of Triplett v Fischer, 54 AD3d 1075, 1076 [2008]). Contrary to petitioner's claim, although there are some gaps in the hearing transcript, they are not so significant as to preclude meaningful review (see Matter of Wigfall v Goord, 53 AD3d 943, 943-944 [2008]; Matter of Butler v Selsky, 49 AD3d 1122, 1123 [2008]). Accordingly, we will not disturb respondent's determination. Petitioner's remaining argument has been considered and found to be lacking merit.

Mercure, J.P., Peters, Rose, Malone Jr. and McCarthy, JJ., concur.

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

20090618

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