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Douglas v. Fischer

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


September 30, 2010

IN THE MATTER OF DAVID DOUGLAS SR., PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: August 2, 2010

Before: Peters, 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 a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was served with a misbehavior report charging him with starting a fire and destroying state property after it was alleged that he set fire to the blankets on his bed. A tier III disciplinary hearing ensued, after which petitioner was found guilty of both charges. Petitioner's administrative appeal was unsuccessful, prompting him to commence this CPLR article 78 proceeding.

We confirm. The misbehavior report, testimony of the correction officers who investigated the incident and testimony of an inmate who witnessed petitioner setting the fire provide substantial evidence to support the determination of guilt (see Matter of Rohs v Fischer, 73 AD3d 1256 [2010]; Matter of Lopez v Fischer, 69 AD3d 1076, 1076 [2010]). Petitioner's contention that the fire was set by another inmate in retribution for petitioner having informed about other inmates' drug use raised a credibility issue to be resolved by the Hearing Officer (see Matter of West v Fischer, 73 AD3d 1301, 1301-1302 [2010]; Matter of Barrett v Fischer, 58 AD3d 1031, 1032 [2009]). Lastly, we discern no error on the part of the Hearing Officer in disallowing the testimony of a correction counselor requested by petitioner, inasmuch as he had no first-hand knowledge of the incident (see Matter of Dallio v Fischer, 68 AD3d 1380 [2009]; Matter of Washington v Napoli, 61 AD3d 1243 [2009], lv denied 13 NY3d 704 [2009]).

Petitioner's remaining contentions have been examined and are without merit.

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

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

20100930

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