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Glover v. Fischer

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


December 17, 2009

IN THE MATTER OF SHEIN GLOVER, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Cardona, P.J., Peters, Spain, 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 which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with possession of unauthorized material after a search of his cell revealed pictures of himself displaying hand signs associated with a street gang. Following a tier III disciplinary hearing, petitioner was found guilty. The determination was upheld on administrative appeal and petitioner now appeals.

We confirm. The misbehavior report, pictures of petitioner and testimony of a correction officer with expertise on gang related materials provided substantial evidence to support the determination of petitioner's guilt (see Matter of Moore v Fischer, 63 AD3d 1401, 1401 [2009]; Matter of Davis v Prack, 58 AD3d 977, 977 [2009]). The fact that petitioner denied any gang affiliation and that the pictures depicted gang signs introduced a question of credibility for the Hearing Officer to resolve (see Matter of Hunter v Bezio, 65 AD3d 726 [2009]; Matter of Terrence v Fischer, 64 AD3d 1110, 1111 [2009]). We have examined petitioner's remaining contentions, including that the matter was improperly transferred, and find them to be either unpreserved or without merit.

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

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

20091217

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