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Boyd v. Fischer

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


June 24, 2010

IN THE MATTER OF TIMOTHY BOYD, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: May 12, 2010

Before: Peters, J.P., Spain, Malone Jr., Garry and Egan Jr., 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 certain prison disciplinary rules.

Following an investigation, petitioner, a prison inmate, was served with a misbehavior report charging him with conspiring to introduce drugs into the facility and making threats. A tier III disciplinary hearing was held, after which petitioner was found guilty of both charges. That determination was upheld on administrative appeal, and petitioner commenced this CPLR article 78 proceeding to challenge that determination.

We confirm. The misbehavior report and testimony, both open and confidential, provide substantial evidence to support the determination of guilt (see Matter of Smiton v New York State Dept. of Correctional Servs., 70 AD3d 1148, 1149 [2010]; Matter of Hayes v Fischer, 70 AD3d 1085, 1085-1086 [2010]). The fact that petitioner was not provided with the name of his alleged co-conspirator did not render the determination defective, inasmuch as the identity was kept secret due to concerns for institutional safety (see Matter of Ross v Selsky, 49 AD3d 1065, 1065-1066 [2008]).

Turning to petitioner's procedural contentions, we find that the disciplinary hearing was timely, inasmuch as the misbehavior report was authored on May 7, 2009 and the hearing commenced on May 13, 2009 (see 7 NYCRR 251-5.1 [a]; Matter of Agosto v Selsky, 39 AD3d 1106, 1106 [2007]). The contentions that the Hearing Officer was biased and that he impermissibly refused to call certain witnesses are unpreserved for our review by petitioner's failure to raise them in his administrative appeal (see Matter of Vargas v Bezio, 69 AD3d 1075 [2010]; Matter of Perez v Fischer, 62 AD3d 1104, 1105 [2009]). Petitioner's remaining arguments have been examined and determined to be without merit.

Peters, J.P., Spain, Malone Jr., Garry and Egan Jr., JJ., concur.

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

20100624

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