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In the Matter of Raheem Oliver v. Brian Fischer

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


March 25, 2011

IN THE MATTER OF RAHEEM OLIVER,
PETITIONER,
v.
BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF
CORRECTIONAL SERVICES,
RESPONDENT.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered November 8, 2010) to review a determination of respondent. The determination found after a Tier III hearing that petitioner had violated an inmate rule.

Matter of Oliver v Fischer

Decided on March 25, 2011 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SMITH, J.P., FAHEY, CARNI, LINDLEY, AND GORSKI, JJ.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a Tier III hearing, that he violated inmate rule 113.10 (7 NYCRR 270.2 [B] [14] [i] [weapon possession]). Contrary to petitioner's contention, the determination is supported by substantial evidence. The misbehavior report, together with the testimony of the correction officer who wrote it and the photographs of the shanks found in a light fixture, constitutes substantial evidence supporting the determination that petitioner violated inmate rule 113.10 (see generally Matter of Foster v Coughlin, 76 NY2d 964, 966; People ex rel. Vega v Smith, 66 NY2d 130, 140). Entered: March 25, 2011 Patricia L. Morgan Clerk of the Court

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