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Hines v. Fischer

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


November 10, 2010

IN THE MATTER OF PRINCE HINES, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: September 29, 2010

Before: Mercure, J.P., Spain, Lahtinen, Stein and Garry, 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.

During a search of petitioner's cell, a correction officer found a toothbrush with two pieces of metal in the end, as well as a can lid underneath some cans on a shelf inside petitioner's locker. As a result, he was charged in a misbehavior report with weapons possession. He was found guilty of the charge at the conclusion of a tier III disciplinary hearing, and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Contrary to petitioner's claim, the determination of guilt was not based solely upon the misbehavior report. Rather, the misbehavior report, together with testimony adduced at the hearing, was considered by the Hearing Officer and constituted substantial evidence supporting the determination (see Matter of Fuentes v Fischer, 56 AD3d 919, 920 [2008]; Matter of Kearney v Fischer, 51 AD3d 1185, 1185-1186 [2008]). While petitioner maintained that the weapons did not belong to him, this presented a credibility issue for the Hearing Officer to resolve (see Matter of Brown v Selsky, 49 AD3d 1108 [2008]; Matter of Wilson v Goord, 47 AD3d 1102, 1103 [2008]). His remaining arguments, including his claim that he was denied a fair and impartial hearing, have not been preserved for our review due to his failure to raise them either at the hearing or on his administrative appeal.

Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur.

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

20101110

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