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Bridgeforth v. Fischer

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


January 14, 2010

IN THE MATTER OF OTIS BRIDGEFORTH, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, 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, an inmate, informed a correction officer that his cellmate had just threatened him with a razor tied to a rope. The correction officer then frisked petitioner's cellmate, but found no razor on him, and a search of the cell revealed that the cellmate's razor, with the blades intact, was in his shower bag. Petitioner was charged in a misbehavior report with lying and refusing a double bunk assignment. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. Upon administrative appeal, respondent modified the determination by dismissing the refusing a double bunk assignment charge and reduced the penalty imposed, but otherwise affirmed the determination. This CPLR article 78 proceeding ensued.

We confirm. The misbehavior report, together with the testimony of its author, provide substantial evidence supporting the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]). Contrary to petitioner's contention, there is no support in the record for his allegations that the Hearing Officer was biased or had predetermined his guilt, nor is there any indication that the determination flowed from such alleged bias (see Matter of Abdullah v Goord, 36 AD3d 978, 979 [2007]). Moreover, the Hearing Officer properly considered petitioner's mental health status by taking the confidential testimony of a representative from the mental health unit (see Matter of Triplett v Fischer, 54 AD3d 1075, 1076 [2008]). Petitioner's remaining contentions, including that the Hearing Officer was not appropriately designated to conduct the hearing, are unpreserved for our review.

Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ., concur.

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

20100114

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