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In the Matter of Carlos Abreu v. Brian Fischer

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


April 28, 2011

IN THE MATTER OF CARLOS ABREU, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND JUDGMENT

Calendar Date: February 28, 2011

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 Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner, a prison inmate, was observed by a correction officer lying on his bed naked, masturbating with the lights on and was given a direct order to stop. Shortly thereafter, the officer again passed petitioner's cell on her rounds and he was standing at his gate masturbating. As a result, petitioner was charged in a misbehavior report with lewd conduct and refusing a direct order. Following a tier III disciplinary hearing, petitioner was found guilty of both charges and the determination was affirmed on administrative appeal. Thereafter, petitioner commenced this CPLR article 78 proceeding.

We confirm. The misbehavior report, testimony of the correction officer who observed petitioner's behavior and the videotape of the incident provide substantial evidence to support the determination of guilt (see Matter of Wahhab v Fischer, 77 AD3d 996, 997 [2010]; Matter of Callender v Selsky, 41 AD3d 1065, 1065-1066 [2007]). Petitioner further contends that he was improperly denied a copy of certain log book entries. However, inasmuch as he conceded that the correction officer who authored the misbehavior report was present at the time of the incident, such documentation was irrelevant to his defense (see Matter of Walker v Fischer, 71 AD3d 1309, 1310 [2010], appeal dismissed 14 NY3d 912 [2010]; Matter of McIver v Goord, 37 AD3d 943, 945 [2007]). The remainder of petitioner's procedural contentions are unpreserved due to his failure to raise them at the hearing (see Matter of Hernandez v Bezio, 76 AD3d 1148, 1148-1149 [2010]; Matter of Joseph v Fischer, 67 AD3d 1103, 1104 [2009]).

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

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110428

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