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Elliott v. Fischer

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


May 20, 2010

IN THE MATTER OF WILLIE C. ELLIOTT, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

Before: Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review two determinations of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner became involved in a loud verbal exchange with another inmate during which petitioner told the inmate that he would "bury [him] underneath the fence." As a result, petitioner was charged in a misbehavior report with creating a disturbance and making threats. Thereafter, confidential information was obtained which revealed that petitioner had arranged to have the same inmate assaulted by a third inmate. Petitioner was therefore charged in a second misbehavior report with conspiring to assault an inmate and engaging in violent conduct. Separate tier III disciplinary hearings were conducted with respect to the charges contained in each report. At the conclusion of these hearings, determinations were rendered finding petitioner guilty of all of the charges and these determinations were later affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence, consisting of the misbehavior report and the testimony adduced at the first disciplinary hearing, supports the determination finding petitioner guilty of creating a disturbance and making threats (see Matter of Wigfall v Goord, 53 AD3d 943, 943 [2008]; Matter of Lewis v Goord, 43 AD3d 1259 [2007], lv dismissed 9 NY3d 1030 [2008]). The determination finding petitioner guilty of conspiring to assault an inmate and engaging in violent conduct is supported by substantial evidence consisting not only of the misbehavior report and the testimony of its author, but also the confidential information considered by the Hearing Officer in camera (see Matter of Hill v Fischer, 69 AD3d 1103, 1103 [2010]; Matter of Britt v Fischer, 54 AD3d 1087, 1087 [2008]). Petitioner's challenge to the sufficiency of the misbehavior reports is not preserved for our review given his failure to raise it at the hearings or in his administrative appeals (see Matter of Gaines v Fischer, 67 AD3d 1080, 1081 [2009]). Therefore, we find no reason to disturb the determinations at issue.

Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur.

ADJUDGED that the determinations are confirmed, without costs, and petition dismissed.

20100520

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