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Cornwall v. Fischer

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


May 20, 2010

IN THE MATTER OF SHAWN CORNWALL, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: April 7, 2010

Before: Mercure, J.P., Spain, Malone Jr., Stein 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 a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner was charged in a misbehavior report with violating the prison disciplinary rule prohibiting gang-related activity. The charge arose from a search of another inmate's prison cell that disclosed several gang-related documents authored by petitioner. After a tier III disciplinary hearing, petitioner was found guilty as charged. That determination was affirmed upon administrative appeal, and petitioner commenced this CPLR article 78 proceeding seeking annulment.

We confirm. Petitioner's admission that he wrote the documents at issue, the documents themselves, the misbehavior report and the hearing testimony provide substantial evidence supporting the determination of guilt (see Matter of Cochran v Bezio, 70 AD3d 1161, 1162 [2010]; Matter of Sweat v Fischer, 52 AD3d 1142, 1142 [2008]). We reject petitioner's claim that he lacked the requisite notice of the rule prohibiting gang-related activity, as he had received a copy of it previously (see Matter of Tumminia v Goord, 294 AD2d 727, 727 [2002], lv denied 99 NY2d 502 [2002]). Further, even if petitioner is correct in his claim that his employee assistant failed to explain the nature of the charge to him, it was explained by the Hearing Officer and there is no indication that the allegedly inadequate assistance prejudiced his defense (see Matter of Moss v Goord, 36 AD3d 977, 978 [2007]; Matter of Salaam v Goord, 8 AD3d 776, 777 [2004]). Petitioner's remaining arguments have been examined and, to the extent they are properly before us, found to be meritless.

Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ., concur.

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

20100520

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