State of New York Supreme Court, Appellate Division Third Judicial Department
November 18, 2010
IN THE MATTER OF JACK DAVIS, PETITIONER,
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.
MEMORANDUM AND JUDGMENT
Calendar Date: September 29, 2010
Before: Cardona, P.J., Mercure, Peters, Malone Jr. and Kavanagh, 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 a prison disciplinary rule.
During an investigation into a prison inmate's injury and possible involvement in a fight, petitioner was found to have a swollen lip and a cut to the back of his head. Petitioner thereafter was served with a misbehavior report charging him with assault, fighting, violent conduct and failure to report an injury. Following a tier III disciplinary hearing, he was found guilty only of the charge of failure to report an injury, and that determination was affirmed on administrative appeal.
Petitioner then commenced this CPLR article 78 proceeding.
We confirm. The misbehavior report, testimony of the correction officer who authored the report and pictures of petitioner's injuries provide substantial evidence to support the determination of guilt (see Matter of Butler v Fischer, 67 AD3d 1112 ). Contrary to petitioner's contention, the misbehavior report contained sufficient detail to provide him adequate notice of the charges and allow him to prepare a defense (see Matter of Edwards v Leclaire, 71 AD3d 1199 ; Matter of Perretti v Fischer, 58 AD3d 999, 1000-1001 , lv denied 12 NY3d 709 ). Finally, where the misbehavior report contained charges that constituted both tier III and tier II infractions, the hearing was properly designated a tier III disciplinary hearing (see Matter of Williams v Goord, 23 AD3d 872, 872-873 ).
Petitioner's remaining arguments have been examined and found to be either unpreserved or without merit.
Cardona, P.J., Mercure, Peters, Malone Jr. and Kavanagh, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
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