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In the Matter of Michael West v. New York State Department of

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


February 3, 2011

IN THE MATTER OF MICHAEL WEST, PETITIONER,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.

Decided and Entered: February 3, 2011

MEMORANDUM AND JUDGMENT

Calendar Date: December 16, 2010

Before: Cardona, P.J., Mercure, Spain, Malone Jr. and McCarthy, 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 the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was observed by a correction officer typing a memorandum on Department of Correctional Services letterhead and, as a result, he was served with a misbehavior report charging him with multiple disciplinary infractions. Following a tier III disciplinary hearing, he was found guilty of misusing state property and forgery. That determination was administratively affirmed and petitioner then commenced this CPLR article 78 proceeding.

Notwithstanding petitioner's exculpatory explanation, the misbehavior report, testimony of the report's author and supporting memorandum that stated that petitioner had been previously instructed not to use departmental letterhead provide substantial evidence to support the determination of guilt (see Matter of Davis v Bezio, 76 AD3d 1134 [2010]). We also find no merit in petitioner's contention that his request to have a certain correction counselor testify was improperly denied, inasmuch as he unequivocally withdrew that request (see Matter of Cornwall v Fischer, 74 AD3d 1507, 1509 [2010]; Matter of Davis v Prack, 63 AD3d 1457, 1458 [2009]).

Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.

Cardona, P.J., Mercure, Spain, Malone Jr. and McCarthy, JJ., concur.

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

Robert D. Mayberger Clerk of the Court

ENTER:

20110203

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