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Warren v. Fischer

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


June 25, 2009

IN THE MATTER OF VINCENT WARREN, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 13, 2009

Before: Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ.

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

During the time that petitioner was confined to an observation cell, the cell was frisked and a correction officer recovered a yellow piece of plastic sharpened to a point on one end, believed to have been made from a toothbrush handle, and a piece of plastic wrap that smelled of feces. As a result, petitioner was charged in a misbehavior report with smuggling and possessing a weapon. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of the correction officer who authored it, provide substantial evidence supporting the determination of guilt (see Matter of Mastropietro v New York State Dept. of Corrections, 52 AD3d 1125, 1126 [2008], lv denied 11 NY3d 711 [2008]; Matter of LaFontant v Fischer, 51 AD3d 1347, 1347 [2008]). We are unpersuaded by petitioner's claim that he was improperly denied certain witnesses given that their testimony would have been either irrelevant or redundant under the circumstances presented (see Matter of Rizzuto v Goord, 36 AD3d 1124, 1125 [2007]; Matter of Pettus v West, 28 AD3d 907, 908 [2006]). In addition, petitioner's assertion that he was improperly denied an employee assistant is belied by the record inasmuch as the correction officer who served him with the assistance form testified that petitioner failed to choose one (see Matter of Martinez v Selsky, 53 AD3d 989 [2008]). Finally, petitioner's claim of hearing officer bias is unsubstantiated by the record and there is no indication that the determination of guilt flowed from any alleged bias (see Matter of Yancey v Conway, 46 AD3d 1042 [2007]; Matter of Lewis v Goord, 43 AD3d 1259 [2007], lv dismissed 9 NY3d 1030 [2008]).

Mercure, J.P., Lahtinen, Kane, Stein and McCarthy, JJ., concur.

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

20090625

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