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Lewis v. Fischer

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF ROBERT LEWIS, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 30, 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 a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Following an investigation which indicated that petitioner had exchanged marihuana with his wife during a visit and had later exchanged marihuana with another inmate, petitioner was charged in a misbehavior report with smuggling and engaging in an unauthorized exchange. Following a tier III disciplinary hearing at which petitioner admitted to the unlawful exchange with another inmate, petitioner was found guilty of both charges. This determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. Contrary to petitioner's contention, the misbehavior report, together with the confidential testimony of its author and petitioner's admission at the hearing, provided substantial evidence to support the determination (see Matter of Staton v Goord, 41 AD3d 1105, 1106 [2007]; Matter of Calhoun v Goord, 20 AD3d 628, 629 [2005]). Moreover, the determination contained an adequate statement of the evidence relied upon by the Hearing Officer (see Matter of Matias v Selsky, 43 AD3d 1261, 1262 [2007]; Matter of Profitt v Goord, 34 AD3d 1136, 1137 [2006]). Finally, there is no indication in the record that the Hearing Officer was biased or that the determination flowed from any alleged bias (see Matter of Davis v Fischer, 64 AD3d 847, 848 [2009], lv denied ___ NY3d ___ [Oct. 22, 2009]; Matter of Warren v Fischer, 63 AD3d 1466, 1467 [2009]).

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

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

20091119

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