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Bonez v. Commissioner of the Prison System of the State of New York

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


September 17, 2009

IN THE MATTER OF WILLIAM F. BONEZ, PETITIONER,
v.
COMMISSIONER OF THE PRISON SYSTEM OF THE STATE OF NEW YORK, DEPARTMENT OF CORRECTIONS, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: August 3, 2009

Before: Cardona, P.J., Spain, Malone Jr., Kavanagh 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 two determinations which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in three misbehavior reports with numerous prison disciplinary violations. A tier III disciplinary hearing was conducted with respect to the charges contained in two of the reports and a tier II disciplinary hearing was conducted with respect to the charges contained in the third report. These hearings resulted in two determinations finding petitioner guilty of most of the charges, and they were later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Petitioner contends that no issue of substantial evidence was raised and, therefore, the matter was erroneously transferred to this Court. Upon reviewing the verified petition, we disagree. Petitioner alleged that two of the misbehavior reports were written in retaliation for his filing of a grievance. Given that such allegations implicate the sufficiency of the evidence upon which the determination of guilt is based, Supreme Court properly found that there existed an issue of substantial evidence and transferred the proceeding to this Court for review (see Matter of Crawford v Girdich, 301 AD2d 921, 921 n [2003]). However, given that petitioner has neither raised the issue of substantial evidence nor his procedural challenges in his appellate brief, they are deemed abandoned (see Matter of Rios v Fischer, 59 AD3d 797, 797 [2009]; Matter of Gathers v Artus, 59 AD3d 795 [2009]).

Cardona, P.J., Spain, Malone Jr., Kavanagh and Garry, JJ., concur.

ADJUDGED that the determinations are confirmed, without costs and petition dismissed.

20090917

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