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Barnett v. Fischer

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


November 10, 2010

IN THE MATTER OF GARY BARNETT, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 29, 2010

Before: Cardona, P.J., Lahtinen, Malone Jr., Kavanagh 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 certain prison disciplinary rules.

Petitioner, a prison inmate, was served with a misbehavior report charging him with drug possession and smuggling after a fellow inmate informed a correction officer that petitioner had given him heroin to transport to the main yard. Following a tier III disciplinary hearing, petitioner was found guilty of both charges. That determination was upheld on administrative appeal, after which petitioner commenced this CPLR article 78 proceeding.

We confirm. The detailed misbehavior report, along with the testimony of the inmate to whom petitioner had given the drugs and the correction officer who investigated the incident and authored the misbehavior report, provide substantial evidence to support the determination of guilt (see Matter of Morusma v Fischer, 74 AD3d 1675, 1675 [2010]; Matter of Rohs v Fischer, 73 AD3d 1256 [2010]). Petitioner's contention that his inmate accuser fabricated the story in an effort to get transferred out of the facility raised a credibility question to be resolved by the Hearing Officer (see Matter of Sital v Fischer, 72 AD3d 1306, 1307 [2010], lv dismissed 15 NY3d 823 [2010]; Matter of McLean v Fischer, 63 AD3d 1468, 1469 [2009]). Because petitioner failed to raise them during the hearing, his procedural contentions have not been preserved for this Court's review (see Matter of Taylor v Fischer, 74 AD3d 1677, 1678 [2010]).

Cardona, P.J., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ., concur.

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

20101110

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