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Dallio v. Fishcer

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


December 17, 2009

IN THE MATTER OF THOMAS DALLIO, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Peters, J.P., Lahtinen, Kane, Kavanagh and Garry, JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, was charged in a misbehavior report with engaging in lewd conduct after he masturbated in front of the facility nurse. Following a tier III disciplinary hearing, he was found guilty of the charge. This determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding.

We confirm. To the extent that petitioner challenges the evidentiary basis of the determination, we conclude that the misbehavior report and the hearing testimony of its author provide substantial evidence to support the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]). We reject petitioner's contention that he was denied the right to call certain witnesses at the hearing as the witnesses requested had no first-hand knowledge of the incident (see Matter of Washington v Napoli, 61 AD3d 1243, 1243 [2009], lv denied 13 NY3d 704 [2009]). Finally, petitioner's contention that the misbehavior report was written in retaliation for a grievance he had filed presented a credibility determination for the Hearing Officer to resolve (see Matter of Johnson v Goord, 46 AD3d 1038, 1038-1039 [2007]).

Peters, J.P., Lahtinen, Kane, Kavanagh and Garry, JJ., concur.

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

20091217

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