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Reynoso v. Fischer

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


November 12, 2009

IN THE MATTER OF IGNACIO REYNOSO, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 2009

Before: Cardona, P.J., Mercure, Peters, Kane and Malone Jr., 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 finding petitioner guilty of violating a prison disciplinary rule.

Following a tier III disciplinary hearing, petitioner was found guilty of engaging in lewd conduct. That determination was administratively affirmed and this CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the eyewitness misbehavior report and confidential testimony heard by the Hearing Officer in camera, supports the determination of guilt (see Matter of Arnold v Fischer, 60 AD3d 1177, 1177 [2009]; Matter of Gallo v Fischer, 50 AD3d 1374, 1374 [2008]). We are unpersuaded by petitioner's contention that he was denied the right to call inmate witnesses to testify, as the requested witnesses executed written refusal forms indicating that they had no knowledge of the alleged incident (see Matter of Wilson v Goord, 47 AD3d 1102, 1103 [2008]). We have examined petitioner's remaining claims, including that he was deprived of adequate employee assistance and that the Hearing Officer was biased, and find them to be either unpreserved or without merit.

Cardona, P.J., Mercure, Peters, Kane and Malone Jr., JJ., concur.

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

20091112

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