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In the Matter of Reginald Scott v. Brian Fischer

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


March 17, 2011

IN THE MATTER OF REGINALD SCOTT, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

Appeal from a judgment of the Supreme Court (Devine, J.), entered July 21, 2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.

MEMORANDUM AND ORDER

Calendar Date: February 2, 2011

Before: Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ.

Following an investigation by the Inspector General's office, petitioner, a prison inmate, was served with a misbehavior report charging him with impersonation and violation of telephone guidelines after he was discovered to have placed numerous three-way and forwarded calls during which he made unauthorized purchases with credit cards that did not belong to him. Petitioner was found guilty of both charges after a tier III disciplinary hearing and the determination was affirmed, with a modification to the penalty, on administrative appeal.

Thereafter, petitioner commenced this CPLR article 78 proceeding and Supreme Court dismissed the petition. Petitioner now appeals.

We affirm. Initially, we find that the Hearing Officer did not err in taking confidential testimony regarding petitioner's mental health, as that practice adheres to the accepted policy of the Office of Mental Hygiene (see Matter of Gibson v Fischer, 56 AD3d 916, 917 [2008]; Matter of Freeman v Fischer, 54 AD3d 1140, 1140 [2008]). Accordingly, we find that petitioner's mental state was properly considered (see Matter of Pante v Goord, 73 AD3d 1394, 1395-1396 [2010]; Matter of Triplett v Fischer, 54 AD3d 1075, 1076 [2008]). Contrary to petitioner's contention, the notation on the hearing disposition itself demonstrates that it was personally served upon him at the conclusion of the hearing. Finally, we find no evidence of hearing officer bias in the record, but rather that the determination was the result of the evidence produced at the hearing (see Matter of Hamilton v Bezio, 76 AD3d 1125, 1126 [2010]; Matter of Ortiz v Fischer, 75 AD3d 1042, 1043 [2010]).

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

Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110317

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