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Lynch v. Fischer

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


August 13, 2009

IN THE MATTER OF PATRICK LYNCH, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: June 10, 2009

Before: Peters, J.P., Spain, Kane, 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 disciplinary rules.

Petitioner, a prison inmate, was charged in a misbehavior report with extortion and threatening another inmate. He was found guilty of both 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, testimony adduced at the hearing and confidential information, including a letter written by petitioner that acknowledges a physical threat to the other inmate, provide substantial evidence of petitioner's guilt (see Matter of Odom v Selsky, 58 AD3d 1060, 1060-1061 [2009]). Contrary to petitioner's assertion, he demonstrated no prejudice from the fact that his copy of the misbehavior report was not signed by the reporting officer. Indeed, a signed copy was presented at the hearing and the author of the report was questioned by petitioner (see Matter of Reyes v Selsky, 32 AD3d 1118, 1119 [2006]). Petitioner's remaining contentions, including that the Hearing Officer was unsympathetic to his medical condition, have been reviewed and are determined to be without merit.

Peters, J.P., Spain, Kane, Malone Jr. and McCarthy, JJ., concur.

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

20090813

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