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Dalrymple v. Fischer

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


August 6, 2009

IN THE MATTER OF GEJUANE DALRYMPLE, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 10, 2009

Before: Mercure, J.P., Peters, Lahtinen, 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.

Following a search of petitioner's cell during which correction officers discovered three plastic dice, 96 postage stamps and four tablets of prescription ibuprofen, he was served with a misbehavior report. A tier III disciplinary proceeding ensued, after which petitioner was found guilty of possessing unauthorized medication, unauthorized property and gambling paraphernalia. That determination was upheld on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding. We now confirm.

Petitioner's lone contention is that his determination must be annulled because he was improperly denied the right to be present during the search of his cell pursuant to Department of Correctional Services Directive No. 4910 (V) (C) (1) (see Matter of Vines v Goord, 19 AD3d 951, 952 [2005]; Matter of Holloway v Lacy, 263 AD2d 740, 741 [1999]).*fn1 We find petitioner's argument unavailing, inasmuch as the officer who conducted the search of petitioner's cell testified that the door was left open during the search and petitioner, although asked to leave the cell, was not directed to leave the immediate vicinity. Petitioner and another inmate testified to the contrary, presenting an issue of credibility for the Hearing Officer to resolve (see Matter of Vines v Goord, 19 AD3d at 952; Matter of Smith v Selsky, 294 AD2d 629, 630 [2002]).

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

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


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