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Bennett v. Fischer

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


June 25, 2009

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

MEMORANDUM AND JUDGMENT

Calendar Date: May 13, 2009

Before: Peters, J.P., Spain, Kane, McCarthy 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 which found petitioner guilty of violating certain prison disciplinary rules.

After petitioner, an inmate, erroneously received two books through the prison mail that were intended for another inmate with the same name, he attempted to return them to the publisher to obtain a refund. Petitioner thereafter was charged in a misbehavior report with solicitation, providing misleading statements and committing a Penal Law offense. Following a tier III disciplinary hearing, petitioner was found guilty and a penalty was imposed. Upon administrative review, respondent dismissed the finding of guilt for committing a Penal Law offense, citing lack of evidence, but affirmed the penalty.

Petitioner thereafter commenced this CPLR article 78 proceeding and we now confirm.

The documentary evidence, including information from the Attorney General's investigation as well as the misbehavior report and the confidential information considered by the Hearing Officer, provide substantial evidence to support the determination of petitioner's guilt (see Matter of Perretti v Fischer, 58 AD3d 999, 1000 [2009], lv denied 12 NY3d 709 [2009]; Matter of Morillo v Goord, 38 AD3d 947, 947 [2007]). Contrary to petitioner's contention, the Hearing Officer had the discretion to deny employee assistance to aid in his defense where he did not fall within one of the enumerated classifications that mandate assistance (see 7 NYCRR 251-4.1; Matter of Alston v Goord, 25 AD3d 852, 853 [2006]). Moreover, the record before us indicates that petitioner's hearing was conducted in a fair and impartial manner, and the determination was not the result of any alleged bias (see Matter of Chavis v Goord, 58 AD3d 954, 955 [2009]; Matter of Burgess v Selsky, 50 AD3d 1347, 1348 [2008]).

We find petitioner's remaining contentions to be either unpreserved or without merit.

Peters, J.P., Spain, Kane, McCarthy and Garry, JJ., concur.

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

20090625

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